[ARCHIVED THREAD] - Losing Preban Status (Page 1 of 2)
Posted: 8/14/2002 4:59:16 PM EDT
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I saw a 'preban' lower with fixed stock for sale. Seemed like a reasonable deal, so I emailed the seller that I'd take it. My ffl said that you can lose preban status. A search in this forum turned up the following: According to a recent BATF letter ruling, if you purchased the lower either stripped or without an upper receiver, it has lost it's 922(v)(2) exemption and is no longer a "preban" because, as a lower-only, it cannot qualify as an assault weapon under 921(a)(30). If it isn't an assault weapon, it can't have a 922(v)(2) exemption. Assembly into 921(a)(30) configuration, or even back into SP-1 configuration would be illegal. My stupid question is this: am I reading this right? The guy sold the upper, so his lower goes from $800 to $150 in value? Is the new rule that you NEVER NEVER NEVER take off the upper (unless you have a collapsable stock)? I hate to jerk the guy around, but if the above is true, he is no longer selling a 'preban' lower. Thanks, -Ngog |
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Well if the ATF is saying that a stripped lower falls under a post-ban status than they should also go on to say that ANY lower whether it be for LEO or not if non assualt weapon parts (upper) is installed anyone should be able to own it. Also, I talked with an ATF agent this week and asked the question whether or not he had ever heard of anyone being prosecuted for an assualt weapons or large cap mag charge. His answer was that he had never heard of one. |
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What BATF is saying is that, in their opinion (which is weighted heavily in court, BTW), if a grandfathered gun is transferred in non-AW configuration, it loses its pre-ban status. BATF believes that only complete AWs can be transferred and retain their status. -Troy |
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So, if it retains preban status until transferred, couldn't the seller buy and install a collapsible stock, and then sell the receiver as a true preban? Would this work? Heck, someone could just mail him a preban upper, and then he could transfer the whole thing back? Legal? As for 'what are the chances anyone will care' type questions. If the only risk was a beating, well, I'd risk it. However, imagine some lazy bureaucrat just scanning the very public posts, and taking notes. Later, knock knock. Think you'd beat it in court? Hmmm... I don't have a few million to live on while spending the next decade in appeals. I think most people would be so beaten down by the media frenzy (right wing lunatic with arsenal of illegal weapons and ammo cache blah blah blah), the loss of job, posting bond, hiring lawyers, fair weather 'friends' (uh, dude, don't talk to me, like, ok?), shocked neighbors (he was always so quiet), stunned relatives (Johnny was a good boy, just a little different...), etc, that we would either accept a humiliating plea bargain (loss of all firearms; permanent record as a wacko) instead of going to court, or we would decide to go out in a blaze of glory. For me, the risk to reward ratio just isn't there. If you think I am poor, you are right. If you think I am a colossal wuss, well, maybe. I do know this: if I was trying to sell a preban, I'd make sure it kept the status. -Ngog |
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There are 2 rather simple solutions to this: 1) buy only complete preban rifles 2) ship a preban upper to the seller, and have him send it to your ffl as a complete rifle that way. If it's a stripped lower, send a preban upper and parts kit 2a) have him ship you the complete rifle, and ship the upper back once it's in your possession (and a preban upper or parts kit to put on it). |
| Let me get this straight with some of your help. John Doe goes to the EE here on AR15.com where there are some pre ban lowers listed for sale. He goes ahead and buys one with a fixed stock does the usual FFL transfer goes home changes the stock to a collapsible one, installs a pre ban upper with all the evil features and so on. For what I understand from the above posts did he built an illegal pre ban rifle? If so wouldn't the seller be using some kind of deceptive advertising? Should the seller really say, pre ban lower for sale, BUT, it won't be a pre ban by the time you get it? Am I right or am I missing something? Thank you. |
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Quoted: Let me get this straight with some of your help. John Doe goes to the EE here on AR15.com where there are some pre ban lowers listed for sale. He goes ahead and buys one with a fixed stock does the usual FFL transfer goes home changes the stock to a collapsible one, installs a pre ban upper with all the evil features and so on. For what I understand from the above posts did he built an illegal pre ban rifle? Under current ATF guidelines, he's built an illegal POST-BAN "semi auto assault weapon", yes. Or a post-ban in pre-ban config, if you prefer - legally it's all the same thing. The only exception is for 'named' assault weapons - if he bought a Colt AR-15 SP1 or Colt AR-15 A2 Sporter II, it's preban even as just a lower, regardless of how it's transferred. If so wouldn't the seller be using some kind of deceptive advertising? Should the seller really say, pre ban lower for sale, BUT, it won't be a pre ban by the time you get it? Am I right or am I missing something? Thank you. A lot of people don't know or care. Is it deceptive? Perhaps - but many sellers don't know any better. |
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Quoted: Also, I talked with an ATF agent this week and asked the question whether or not he had ever heard of anyone being prosecuted for an assualt weapons or large cap mag charge. His answer was that he had never heard of one. There was a case here in NY about 9 months ago. A guy had confused his AR's and put the postban lower with the preban upper. Unfortunately for him, his home was burglarized. When the police came, they safeguarded the weapons that weren't stolen. An astute local PD saw the mistake and he received 3-8 years. Supposedly, the judge apologized to the man, saying he didn't think he deserved to go to jail but was forced to issue the mandatory sentence by law. |
| Yes that is the ATF's take on 922(v) but it is pure smoke, or hot air. We only know of one case in which a guy is doing time for a 922(v) case, and the law is now eight years old. There are several phantom cases though, like that guy just posted above about one in NY. This guy will not come back here and give a case name that deals with a new 922(v) conviction, the odds are mathematically impossible. Better chance that poster is now dead from a lighting strike. |
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The case was most likely prosecuted under NY's AW Ban. Here are the reasons: 1) Mention of a Mandatory Sentence. There is no mandatory sentence on the federal AW Ban. 2) Was arrested by local PD. Local PD have no authority to arrest for federal crimes. Hence the reason most states now have laws requiring MGs, etc... be legal under federal law. This is so they can arrest and prosecute. Very few states have AW Bans at the current time. only ones I am aware of are: CA, CT, NY, DC, HI and local juristdictions in IL, OH, and a few other states. Remember, there is a difference between State and Federal Law. The difference is that federal charges are rarely filed in true crimes...Most of the time, the state ends up having to prosecute. This is particularly annoying as the states are now having to implement 10-20-Life, 3 Strikes, etc...to send violent criminals up for a long time. Yet, file a few federal weapons, etc...charges and they could send them to federal prison for the rest of their lives (assuming the judge played along and gave the max. sentence). Instead, the ATF is focusing its efforts on getting guys with illegal MGs, instead of federalizing charges against armed robbers, and other real criminals. As for federal AW Charges. There have been a few...But, I believe every case involved willfull, repeated selling of illegal post-bans at Gun Shows, etc...advertised as Pre-Bans. And I'm not talking about Pre-Bans which lost exemption...I'm talking about guns built a few days earlier and sold to unsuspecting customers as pre-bans. |
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"As for federal AW Charges. There have been a few...But, I believe every case involved willfull, repeated selling of illegal post-bans at Gun Shows, etc...advertised as Pre-Bans. And I'm not talking about Pre-Bans which lost exemption...I'm talking about guns built a few days earlier and sold to unsuspecting customers as pre-bans." Those are good examples of "phantom" cases. |
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Quoted: Have the guy put a collapsible stock on it prior to sale/ship. Should solve problem in a cheap and easy fashion. No, it wouldn't. A lower by itself does NOT meet the definition of "semi-automatic assault weapon". That's the whole point here: only COMPLETE WEAPONS in ASSAULT WEAPON CONFIGURATION can be transferred and retain their pre-ban status, per BATF. Of course, maybe a court will rule that BATF is mistaken, but in order to find out, you have to get caught breaking the law. -Troy |
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Quoted: Quoted: Have the guy put a collapsible stock on it prior to sale/ship. Should solve problem in a cheap and easy fashion. No, it wouldn't. A lower by itself does NOT meet the definition of "semi-automatic assault weapon". That's the whole point here: only COMPLETE WEAPONS in ASSAULT WEAPON CONFIGURATION can be transferred and retain their pre-ban status, per BATF. Of course, maybe a court will rule that BATF is mistaken, but in order to find out, you have to get caught breaking the law. -Troy Why not Troy? If it was in AW config and you sell just the lower, AND it has an evil feature(ie collapsible stock) then what else can it be classified as? Only an AW can have the PG and collapse stock, correct? Anyhow, do you have a link or know where I can find the info on AW's you posted above? Much appreciated. |
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Hi Troy, just stopping by to see if lightning had struck or not. So why is it that the ATF writes those goofy letters about 922(v) but does not prosecute 922(v) cases? I think this is the part that someone says, hey, they do but I can't name any, they are secret or something. Basically my stance is to obey the law, but you have to take into account the reality of the situation at some point, this thread has left reality and is pure fantasy land fairy tale stuff. |
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Here is the key...The feds are not running aroung to ranges, gun shows, etc...looking for illegaly configured post-bans. You pretty much have to piss them off or be doing something else to have them take you down for 922(v). If you piss them off, they'll get you on whatever they can. If you are doing something else it is likely an add-on charge. Cases I've heard of include: 1) A Dealer in Michigan who repeatedly built and sold Post-Ban AWs at gun shows to unsuspecting customers telling them they were pre-ban and charging pre-ban prices. 2) A Gun Runner who had an AW Charge tacked on to a long list of other charges. 3) A convicted felon who owned a Pre-Ban was charged under 922(v) as well as being a felon in possession because he did not legally own the gun on 9-14-1994. He was a felon at the time, so the gun was not grandfathered. There are probably others we haven't heard about. These are generally tacked-onto numerous other charges to convince someone to plea bargain. Quoted: Hi Troy, just stopping by to see if lightning had struck or not. So why is it that the ATF writes those goofy letters about 922(v) but does not prosecute 922(v) cases? I think this is the part that someone says, hey, they do but I can't name any, they are secret or something. Basically my stance is to obey the law, but you have to take into account the reality of the situation at some point, this thread has left reality and is pure fantasy land fairy tale stuff. |
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Quoted: Quoted: No, it wouldn't. A lower by itself does NOT meet the definition of "semi-automatic assault weapon". That's the whole point here: only COMPLETE WEAPONS in ASSAULT WEAPON CONFIGURATION can be transferred and retain their pre-ban status, per BATF. Of course, maybe a court will rule that BATF is mistaken, but in order to find out, you have to get caught breaking the law. -Troy Why not Troy? If it was in AW config and you sell just the lower, AND it has an evil feature(ie collapsible stock) then what else can it be classified as? Only an AW can have the PG and collapse stock, correct? Anyhow, do you have a link or know where I can find the info on AW's you posted above? Much appreciated. [url]atf.treas.gov/firearms/faq/faq2.htm#o[/url] [b](02) How does the law define the term "semiautomatic assault weapon?"[/b] The term "semiautomatic assault weapon" is defined to include 19 named models of firearms and semiautomatic rifles, semiautomatic pistols, and semiautomatic shotguns that have at least 2 of the features specified in the law. [b][red]Frames or receivers for firearms are not regulated as semiautomatic assault weapons, since they could be assembled as a firearm other than the 19 named models of firearms. [i]Likewise, frames or receivers are not semiautomatic assault weapons under the "features" test of the law[/i] because they do not yet have the features necessary to bring them within the definition.[/red][/b] Semiautomatic assault weapons in knockdown (disassembled) condition consisting of a receiver and [b]all parts needed to assemble a complete semiautomatic assault weapon[/b] are subject to regulation if the parts are segregated or packaged together and held by a person as the parts for the assembly of a particular firearm. [18 U. S. C. 921( a)( 30)] ======== The basic definition of a (rifle-based) "semi-automatic assault weapon" is that it must be a rifle capable of semi-automatic fire. A lower with a collapsable stock is NOT a rifle capable of semi-automatic fire. ======== Note again that this is the LEGAL forum, and we are trying to give you the correct LEGAL advice. Just because you can usually get away with something doesn't mean that it is legal to do. For example, most people exceed the posted speed limits on the freeway. Does that mean that speeding is legal, or that SOME people don't get busted for speeding? There's a BIG difference between what is legal and [b]what you can get away with.[/b] I'd be happy to discuss the latter, but this forum is primarily to discuss the former. Remember: I'm not recommending or endorsing any course of action on your part. I personally think you should be able to make all of your guns full-auto, suppressed, or whatever you wish, and that these laws are unConstitutional. But when asked "is this legal", I'm going to give you the best LEGAL answer that I can. You are free to make your own decision from there. -Troy |
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Thanks Troy. I guess I'll withdraw my previous advice. Ya really do have to wonder just exactly what ATF would classify this type of lower as since the only criteria it meets is an AW. Gets kinda ridiculous after a point. I mean how many angels can fit through increasingly small hoops they have to jump thru. In the end their intent seems to eliminate AWs via subsequent transfers. Anyway, thanks for the info. |
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Basically, if the preban receiver was made into a complete assault weapon prior to the ban taking effect, that receiver can be put into any configuration thereafter and still retain its AW status, as long as something is AW about it. (FS, bayo, collapsable stock.) That BATF letter only says that a gun isn't a gun unless it is complete. That's how I read it atleast. Unless they are changing the 94 Crime Bill (illegal), the only thing they are doing is saying that selling a receiver or incomplete preban lower means that you aren't buying a preban. It makes sense and it doesn't seem to then UNgrandfather these things. It'd be very interesting in proving that at some point the gun sported a post ban upper or was in complete post 1994 compliance. It doesn't make sense AT ALL. Their burdens of proof are outrageous and they can basically take any gun they THINK has been in post ban configuration and prosecute the owner. UNgrandfathering a gun should also require a permanent marking on it to make it visible. Otherwise there would be no chance of a buyer knowing that it was illegal. Was this taken out of context or something? Has anyone seen this before? |
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Quoted: [url]atf.treas.gov/firearms/faq/faq2.htm#o[/url] [b](02) How does the law define the term "semiautomatic assault weapon?"[/b] [b][red]Frames or receivers for firearms are not regulated as semiautomatic assault weapons, since they could be assembled as a firearm other than the 19 named models of firearms. [i]Likewise, frames or receivers are not semiautomatic assault weapons under the "features" test of the law[/i] because they [/red][blue]do not yet have the features necessary to bring them within the definition.[/blue][/b] -Troy I would have to disagree with this portion of the regulation (not withstanding the other portions which I snipped). According to the section in blue that is not entirely true. A stripped receiver they are correct. But a receiver with a pistol grip and collapsible stock DOES have the features necessary to bring them within the definition. Just my $0.02. I always buy complete rifles anyway so. |
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Quoted: Quoted: [url]atf.treas.gov/firearms/faq/faq2.htm#o[/url] [b](02) How does the law define the term "semiautomatic assault weapon?"[/b] [b][red]Frames or receivers for firearms are not regulated as semiautomatic assault weapons, since they could be assembled as a firearm other than the 19 named models of firearms. [i]Likewise, frames or receivers are not semiautomatic assault weapons under the "features" test of the law[/i] because they [/red][blue]do not yet have the features necessary to bring them within the definition.[/blue][/b] -Troy I would have to disagree with this portion of the regulation (not withstanding the other portions which I snipped). According to the section in blue that is not entirely true. A stripped receiver they are correct. But a receiver with a pistol grip and collapsible stock DOES have the features necessary to bring them within the definition. Just my $0.02. I always buy complete rifles anyway so. I agree as well, since the actual firearm is the receiver-- the rest are just parts. Also, if its one of the specifically-named assault weapons, then it can be stripped for sure, right? |
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Let me try again. A frame or receiver is still legally a FIREARM, but only a COMPLETE gun IN AW CONFIGURATION can be a "semi-automatic assault weapon." You are erroneously confusing the definitions of "firearm" and "S.A.W." The text of the law: TITLE 18 > PART I > CHAPTER 44 > Sec. 921 > (a) (3) The term [blue]''firearm''[/blue] 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) [blue]the frame or receiver of any such weapon;[/blue] (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm. ========= (30) The term [red]''semiautomatic assault weapon''[/red] means - (B) a [red]semiautomatic rifle[/red] 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; A receiver is NOT a "semi-automatic rifle", which is why BATF ruled that a receiver cannot be a SAW. And guess what? BATF has been delegated the authority to make up the regulations to enforce these laws. Those rulings, in effect, are law, unless struck down by a court of law. You can "disagree" with BATF's position, but that has nothing to do with the legality of that position. -Troy |
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Allow me to play devil's advocate: Assume I sell an AW that is missing a detent pin or spring. Or perhaps a firing pin. Would it then lose its AW status? Seems preposterous to me. What if I ship my upper out for work for an indefinite period and leave the lower in my safe? Would I have to convert it to a postban weapon? Yes, the solution would be to ship the entire weapon but what if..? I'm sure not looking to test this "ruling" but I don't see how it could hold up in court. Of course, I'm no attorney... I really would be curious as to what ATF would call a lower rec with PG and CAR stock as it fits none of their definitions as I read them. I'm sure not going to call them though. I think we need an icon for opening a can of worms.. |
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cc48510 1) A Dealer in Michigan who repeatedly built and sold Post-Ban AWs at gun shows to unsuspecting customers telling them they were pre-ban and charging pre-ban prices. Here is what I hear on that one "I'm not sure of the EXACT outcome, but it wasn't drastic. Midwest Ordnance is still in business, and gets a good rating from those who shop at that store." Just put that one BTT. 2) A Gun Runner who had an AW Charge tacked on to a long list of other charges. Think you are referring to US v Valentin, I have not been able to figure out how 922(v) fits into this case, but am ready to hear how it does, here is a link (and no I don’t remember how to post links here): http://www-2.cs.cmu.edu/afs/cs/user/wbardwel/public/nfalist/us_v_valentin.txt 3) A convicted felon who owned a Pre-Ban was charged under 922(v) as well as being a felon in possession because he did not legally own the gun on 9-14-1994. He was a felon at the time, so the gun was not grandfathered. That would be US v Indelicato. Thing is Indelicato was not convicted of a 922(v) violation, nor was he ever charged for such a violation. Troy “Note again that this is the LEGAL forum, and we are trying to give you the correct LEGAL advice. Just because you can usually get away with something doesn't mean that it is legal to do. For example, most people exceed the posted speed limits on the freeway. Does that mean that speeding is legal, or that SOME people don't get busted for speeding? There's a BIG difference between what is legal and what you can get away with. I'd be happy to discuss the latter, but this forum is primarily to discuss the former. Remember: I'm not recommending or endorsing any course of action on your part. I personally think you should be able to make all of your guns full-auto, suppressed, or whatever you wish, and that these laws are unConstitutional. But when asked "is this legal", I'm going to give you the best LEGAL answer that I can. You are free to make your own decision from there.” Agreed that what is legal is what is important here. That is my beef with all the hand wringing over this and that, and letters from the ATF etc. What is legal is defined in court, not on ATF letter head, it is in court that the rubber meets the road so to speak, it is there that citizens get fined, jailed, etc for such things as speeding as you pointed out. So here we find much advice given on 922(v) with no court cases sited, as in none, not not many but not freaking one. Now, after clearing the air a bit, ah hum, I shall take us from the dream land into reality into the actual application of 922(v). First off manufactures of firearms, must and do comply. Secondly the ATF has thus far not enforced 922(v) violations in terms of the end user. Go to any gun show near you, how many violations off 922(v) can you find, how many 922(o) violations can you find? Odds are similar that an elephant would defecate on you in such a manor as to cause your untimely death then would you be put away for a 922(v) violation, heck do the match. Ah, the way it is! Now lets go to court cases. Please refer to US v Indelicato: http://www-2.cs.cmu.edu/afs/cs/user/wbardwel/public/nfalist/us_v_indelicato2.txt In this case the court determines that a semiautomatic assault weapon (SAW) is only grandfathered to the individual that owned it on 09-14-1994. So now, if we truly were honest in giving LEGAL advise on the possession, and transfer of SAWs why no mention of this? Best advice here is if your SAW was not owned by you on 09-14-1994 then you need to torch cut the receiver in two places, and fill the bore with cement. Would also be a good idea to not loiter near the wrong end of an elephant. Or how about this case: http://www-2.cs.cmu.edu/afs/cs/user/wbardwel/public/nfalist/us_v_spinner.txt Here the court determines that they are not so sure that the pistol grip of a AR-15 “protrudes conspicuously”. Unsure enough that Spinner is not convicted of the charge. How about them apples? So how about an ATF letter to explain all that? |
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Quoted: cc48510 1) A Dealer in Michigan who repeatedly built and sold Post-Ban AWs at gun shows to unsuspecting customers telling them they were pre-ban and charging pre-ban prices. Here is what I hear on that one "I'm not sure of the EXACT outcome, but it wasn't drastic. Midwest Ordnance is still in business, and gets a good rating from those who shop at that store." Just put that one BTT. 2) A Gun Runner who had an AW Charge tacked on to a long list of other charges. Think you are referring to US v Valentin, I have not been able to figure out how 922(v) fits into this case, but am ready to hear how it does, here is a link (and no I don’t remember how to post links here): [url]http://www-2.cs.cmu.edu/afs/cs/user/wbardwel/public/nfalist/us_v_valentin.txt[/url] 3) A convicted felon who owned a Pre-Ban was charged under 922(v) as well as being a felon in possession because he did not legally own the gun on 9-14-1994. He was a felon at the time, so the gun was not grandfathered. That would be US v Starr, the only case we known of a guy doing time for a 922(v) violation, that I already mentioned: [url]http://www-2.cs.cmu.edu/afs/cs/user/wbardwel/public/nfalist/us_v_starr.txt[/url] Troy “Note again that this is the LEGAL forum, and we are trying to give you the correct LEGAL advice. Just because you can usually get away with something doesn't mean that it is legal to do. For example, most people exceed the posted speed limits on the freeway. Does that mean that speeding is legal, or that SOME people don't get busted for speeding? There's a BIG difference between what is legal and what you can get away with. I'd be happy to discuss the latter, but this forum is primarily to discuss the former. Remember: I'm not recommending or endorsing any course of action on your part. I personally think you should be able to make all of your guns full-auto, suppressed, or whatever you wish, and that these laws are unConstitutional. But when asked "is this legal", I'm going to give you the best LEGAL answer that I can. You are free to make your own decision from there.” Agreed that what is legal is what is important here. That is my beef with all the hand wringing over this and that, and letters from the ATF etc. What is legal is defined in court, not on ATF letter head, it is in court that the rubber meets the road so to speak, it is there that citizens get fined, jailed, etc for such things as speeding as you pointed out. So here we find much advice given on 922(v) with no court cases sited, as in none, not not many but not freaking one. Now, after clearing the air a bit, ah hum, I shall take us from the dream land into reality into the actual application of 922(v). First off manufactures of firearms, must and do comply. Secondly the ATF has thus far not enforced 922(v) violations in terms of the end user. Go to any gun show near you, how many violations off 922(v) can you find, how many 922(o) violations can you find? Odds are similar that an elephant would defecate on you in such a manor as to cause your untimely death then would you be put away for a 922(v) violation, heck do the match. Ah, the way it is! Now lets go to court cases. Please refer to US v Indelicato: [url]http://www-2.cs.cmu.edu/afs/cs/user/wbardwel/public/nfalist/us_v_indelicato2.txt[/url] In this case the court determines that a semiautomatic assault weapon (SAW) is only grandfathered to the individual that owned it on 09-14-1994. So now, if we truly were honest in giving LEGAL advise on the possession, and transfer of SAWs why no mention of this? Best advice here is if your SAW was not owned by you on 09-14-1994 then you need to torch cut the receiver in two places, and fill the bore with cement. Would also be a good idea to not loiter near the wrong end of an elephant. Or how about this case: [url]http://www-2.cs.cmu.edu/afs/cs/user/wbardwel/public/nfalist/us_v_spinner.txt[/url] Here the court determines that they are not so sure that the pistol grip of a AR-15 “protrudes conspicuously”. Unsure enough that Spinner is not convicted of the charge. How about them apples? So how about a ATF letter to explain all that? I'd be afraid to ask... Thanks, Ekie |
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[url]http://www-2.cs.cmu.edu/afs/cs/user/wbardwel/public/nfalist/us_v_indelicato2.txt[/url] "In this case the court determines that a semiautomatic assault weapon (SAW) is only grandfathered to the individual that owned it on 09-14-1994. So now, if we truly were honest in giving LEGAL advise on the possession, and transfer of SAWs why no mention of this? Best advice here is if your SAW was not owned by you on 09-14-1994 then you need to torch cut the receiver in two places, and fill the bore with cement. Would also be a good idea to not loiter near the wrong end of an elephant." --------------------------------------------------------- this would seem to be the most pertinent case here with regards to the discussion at hand and I've got a few thoughts: 1)It is stipulated by ATF the manner in which licencees(ie FFLs) are to verify whether a weapon is grandfathered. If such a weapon cannot be grandfathered and sold then what is the point of having such a process outlined in the first place. Seems like this guys attorney dropped the ball here. Of course, I'm not an attorney. 2)there is precedent for other weapons (grandfathered) to be sold in same manner, ie. MG's, AOW's, SBR's. Once again, how would one classify a preban receiver with a pistol grip AND collapsible stock if not as an AW? |
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Quoted: Again, the gun must have been manufactured as a complete firearm before the cutoff date. A call to the manufacturer will tell you if this is that case. Not necessarily. Some manufacturers are out of business. Olympic had a fire and records are lost. ATF might arbitrarily rule by decree that all of their rifles are postban. Some manufacturers may simply not be helpful--Colt comes to mind. What if someone bought a lower in 1985, etc and then assembled it into AW configuration? The manufacturer will not be much help there. Per ATF it is the responsibility of the licensee to verify status prior to selling. My opinion is that ATF is creating a large number of rules by decree in the hope that their decree will hold enough weight in court. No doubt it will in Fed Courts overseeing liberal juristictions such as the case in Massachusetts noted above. Clearly it would be in our interest to get such cases heard in more conservative juristictions. Liberals learned this years ago. How many precedent setting cases that benefited liberal causes have been heard in the 9th Circuit? There is a method in their madness. We could learn something from them in this regard. |
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Quoted: Let me try again. A receiver is NOT a "semi-automatic rifle", which is why BATF ruled that a receiver cannot be a SAW. -Troy OK, this isn't directly related but a recent conversation I had with a fellow gun enthusiast raises a similiar question. He had the oppurtunity to buy a 9mm AR15 & it was post-ban compliant as far as no AW features BUT it had a lower receiver marked LEO only. Now I theorized that technically the receiver had nothing to do with the rifle being a AW. It was whether or not the complete rifle had a flash-suppressor, bayonet-lug etc. AND since the upper was post-ban compliant it was technically legal. We both thought a "LEO" receiver could be assembled into a post-ban rifle & legally owned by a civilian but wouldn't be worth the potential legal headache that might ensue if somebody disagreed. If it's in a post-ban configuration it doesn't violate the '94 law,no matter what's marked on the receiver, right ??? |
| If it is the preban Colt I'm selling, I have the reciept from SAW LE sales showing that it is a complete 20" Colt preban rifle (police trade in). I sent the upper to Bushmaster (because the upper is a large front pivot pin) and had the 14.5" w/ phantom barrel installed on the large hole Colt upper. I am also including the original Colt 20" 1x7" barrel assembly with the rifle. |
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Quoted: Troy Agreed that what is legal is what is important here. That is my beef with all the hand wringing over this and that, and letters from the ATF etc. What is legal is defined in court, not on ATF letter head, it is in court that the rubber meets the road so to speak, it is there that citizens get fined, jailed, etc for such things as speeding as you pointed out. So here we find much advice given on 922(v) with no court cases sited, as in none, not not many but not freaking one. ATF letters are certainly NOT law. I repeat this constantly. At the same time, they are excellent tools that allow us to view what their interpretation of the law is. Most of the time, I have to admit, I agree. The Tech Branch did not write the law and should not be chastised, or minimized, for their reading of it. If you disagree with their interpretation, that's great; tell us your take on them. They [i]can[/i] be a guide to behavior, certainly, or they can be ignored- it's your choice. However, I would caution anyone not to rely on a lack of caselaw as a guide to behavior. Look a the totality of opinions and the plain language of the statutes and form your own. Secondly the ATF has thus far not enforced 922(v) violations in terms of the end user. Go to any gun show near you, how many violations off 922(v) can you find, how many 922(o) violations can you find? See above. Now lets go to court cases. Please refer to US v Indelicato: http://www-2.cs.cmu.edu/afs/cs/user/wbardwel/public/nfalist/us_v_indelicato2.txt In this case the court determines that a semiautomatic assault weapon (SAW) is only grandfathered to the individual that owned it on 09-14-1994. So now, if we truly were honest in giving LEGAL advise on the possession, and transfer of SAWs why no mention of this? First, this is a district court case out of Mass (was not appealed). Second, you have read it wrong. The facts and the ruling are distinguishable from the conconclusion you proffer. The defendant, because of his conviction status/civil rights status at the time of the ban, was not legally in possession of the SAW. In fact, NO ONE individual was legally in possession of the SAW at the time of the ban. For that limited reason, his reclamation suit failed. By inversion, if someone, anyone (individual) [i]had[/i] been in possession of the SAW at the time of the ban, he or his designate could have recovered the SAW. Just because his suit failed due to his legal status at the time of the ban does not mean that all grandfathered SAWs must remain with the original possessor [i]ad infinitum[/i]; it simply does not say this. |
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"ATF letters are certainly NOT law. I repeat this constantly. At the same time, they are excellent tools that allow us to view what their interpretation of the law is. Most of the time, I have to admit, I agree. The Tech Branch did not write the law and should not be chastised, or minimized, for their reading of it. If you disagree with their interpretation, that's great; tell us your take on them. They can be a guide to behavior, certainly, or they can be ignored- it's your choice. However, I would caution anyone not to rely on a lack of caselaw as a guide to behavior. Look a the totality of opinions and the plain language of the statutes and form your own." Agreed, but what if ATF letters do no reflect ATF "behavior"? What if the ATF Tech Branch put out letters that have no correlation with their actual enforcement? That is my entire point, what the heck is going on here? I see ATF putting up a front that they are actively concerned with 922(v) violations, even coming up with fancy advice on letter head, but there is a "lack of case law". Then I see all this hand wringing going on here attempting to comply with the latest letter from the Tech Branch. Why don't you see the "lack of case law as a guide to behavior"? We can see a correlation between Tech Branch letters and 922(o) violations do we not? I could agree with you on this point if the law existed in a vacuum that consisted of Tech Branch letters and cyber space posts, but it don't. Hmm, well maybe it does with 922(v). In regards to US v Indelicato, first off it was a district court case, that is United States District Court. Secondly, take another look at the case there Steve, .."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." The point you make about Indelicato's incarceration on 09-13-1994 is incidental to the case, in fact it is a point that falls under "additionally". |
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I think that a couple of comments on Indelicato are in order. 1. This is admittedly a District Court case, but it was also decided by a Magistrate Judge, not a so-called Article III judge and thus, in the profession, deemed of lesser stature than appointed-for-life Article III judges. 2. Judges make mistakes (some of us think liberal judges make more than their share) and I think this judge made a big one. The fundamental understanding, in 1994 and now 8 years later, is that the grandfather clause meant and means "legally possessed by [b]someone[/b]" on the date of enactment; this decision says "possessed [b] by a particular person[/b]". The difference is enormous, and would make gun-grabbers salivate--owners/possessors on the date of enactment could keep theirs, but they could [b]NEVER[/b] be transferred. This is hogwash, not the meaning or intent of the statute, and even BATF would agree. It also leads to bizarre potential consequences--does my pre-ban, stolen on 9/12/94, and thus not lawfully possessed by the thief [a convicted felon] on 9/13/94, become contraband permanently? I think not. 3. The decision does go on to cite, however, a legitimate reason why the clause would not apply--Indelicato was not in legal possession of the UZI then because of his status as a convicted felon--he was simply not then able to lawfully possess under Federal law, so it was not then lawfully possessed. 4. the general point, made here and elsewhere, is valuable and worth repeating--the law is the statute, not what any agency says it is, except insofar as the agency's regulation gives effect to and does not violate the statute. [b]But[/b], you nevertheless take your chances, possibly with your liberty, that, in a murky area, a gun-hating judge with black-robe disease (the power thing) won't hit you and hit you hard. Be warned. |
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Quoted: Agreed, but what if ATF letters do no reflect ATF "behavior"? What if the ATF Tech Branch put out letters that have no correlation with their actual enforcement? That's possible; but probably not intentional. The tech branch is, in my opinion, simply trying to interpret the law. I see ATF putting up a front that they are actively concerned with 922(v) violations, even coming up with fancy advice on letter head, but there is a "lack of case law". I don't. I see people writing the tech branch for their opinion on the law and I see the tech branch responding. We'll have to disagree on this. Then I see all this hand wringing going on here attempting to comply with the latest letter from the Tech Branch. People making a bona fide attempt at compliance with the law is "hand wringing"? If you want to use the letters to wipe your ass, go ahead, I won't criticize you. Likewise, I would not come down on people who simply want to be "legal", caselaw or not. Why don't you see the "lack of case law as a guide to behavior"? Are you serious? I have yet to see a prosectution in the Virginia Beach Circiut Court for crimes against nature by having carnal relations with a horse, however, you won't see me humping any ponies because of the "lack of caselaw". I simply try to stay legal, considering the plain language of the USC and, yes, listening to other opinions on same. If you or anyone else wants to role the dice on sketchy configurations then that is your business. Hey, maybe you will never be charged- more power to you. We'll have to disagree on this as well. In regards to US v Indelicato, first off . . . take another look at the case there Steve, .."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." Indelictato, or anyone else for that matter, did not have the Uzi in a manner [i]otherwise lawfully possessed under Federal law [/i] at the time of the ban. That is the relevant language. That is why he did not win the reclamation suit. I think your taking the ruling to an illogical end. The point you make about Indelicato's incarceration on 09-13-1994 is incidental to the case, in fact it is a point that falls under "additionally". Actually, I also said "civil rights status" which is what they focussed on. It does not matter. The point is no one, including Indelicato, had possession of the Uzi at the time of the ban and therefore could not be possessed as grandfathered by ANYONE- at least that is what this Mag judge ruled in a DISTRICT COURT CASE that would be relied upon by NOBODY. Edited to plug in the last sentence. |
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It is just goofy that a pre-bad would loose its status because it not having all of its (3) preban features. I thought that the receiver was the regulated part (the one with the number). Also if you thing about it - an complete lower receiver with a collapsible stock has three evil features 1. pistol grip 2. collapsible stock 3. ability to take a high capacity mag. Just my 2 cent opinion. Badredfish [devil] |
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Jagcap: Welcome aboard, great post, got two comments: "This is hogwash, not the meaning or intent of the statute, and even BATF would agree. It also leads to bizarre potential consequences--does my pre-ban, stolen on 9/12/94, and thus not lawfully possessed by the thief [a convicted felon] on 9/13/94, become contraband permanently? I think not." Why yes that is the case, just ask Steve in VA, he will set you straight here. But, you nevertheless take your chances, possibly with your liberty, that, in a murky area, a gun-hating judge with black-robe disease (the power thing) won't hit you and hit you hard. Be warned. For those that fear the judge hitting them hard for a 922(v) violation my advice would be to cut the receiver in two places and pour cement in the barrel. Or proper medication can also aid in one sleeping well at night. Steve-in-VA "That's possible; but probably not intentional. The tech branch is, in my opinion, simply trying to interpret the law. I don't. I see people writing the tech branch for their opinion on the law and I see the tech branch responding. We'll have to disagree on this." Agreed, but why is it not then carried thru? "People making a bona fide attempt at compliance with the law is "hand wringing"? If you want to use the letters to wipe your ass, go ahead, I won't criticize you. Likewise, I would not come down on people who simply want to be "legal", caselaw or not. Are you serious? I have yet to see a prosectution in the Virginia Beach Circiut Court for crimes against nature by having carnal relations with a horse, however, you won't see me humping any ponies because of the "lack of caselaw"." Ah hum, well now, is this situation actually similar? I mean are people openly having carnal relations with horses at public horse shows with law enforcement present, while at the same time law enforcement is making arrests for illegal horse trading? Let say this is the case in Virginia Beach, I would then assume you would be the first to write letters to the Virginia Beach pony humping police asking for clarifications on certain minute aspects of the pony humping ban, and then actively debating these finer trivial points while oblivious to the fact that all the while the humping goes on, while the law is ignored by the pony humping police (cause they really don't care, they have more important things to do, and they tend to like humping ponies anywho). Then when it is pointed out to you that these finer points you love to debate don't have nothing to do with the situation as it exists in reality you would be quick to point out that you are just trying to make sure all the pony humpers are compliant. "I simply try to stay legal, considering the plain language of the USC and, yes, listening to other opinions on same. If you or anyone else wants to role the dice on sketchy configurations then that is your business. Hey, maybe you will never be charged- more power to you. We'll have to disagree on this as well." Rolling the dice implies some sort of risk don't it? Who says I am rolling the dice, or that there is a risk if you do? Who here knows who owned thier SAW on 09-13-94, hmm? Back to Indelicato, funny that James Bardwell, Jagcap, and I have no trouble reading that one. Things that make you go hmm. |
| Ok, let me get this straight, if you have a verified preban lower that was assembled into a rifle before the ban and sell only the lower it is then a postban, so if you do the opposite and sell the upper is this now a post ban upper with illegal threaded muzzle and bayo lug. Sounds like a bunch of BS to me because the lower is the only part registered and therefor does not matter weather it is assembled or not it is still considered a gun weather it is built or not. Sounds like ATF is changing the rules to suite themselves. |
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Quoted: Jagcap: Welcome aboard, great post, got two comments: "This is hogwash, not the meaning or intent of the statute, and even BATF would agree. It also leads to bizarre potential consequences--does my pre-ban, stolen on 9/12/94, and thus not lawfully possessed by the thief [a convicted felon] on 9/13/94, become contraband permanently? I think not." Why yes that is the case, just ask Steve in VA, he will set you straight here. Really? Where did you read that; I told you what I thought a Mag said in a ruling from a lowly district court civil reclamation suit. I'm beginning to understand why you cannot read and properly understand an otherwise unambiguous Mag ruling. Do you know how many f*cked up rulings are handed down every day on the district court level? That's why we have multiple levels of appeal, makes you go "hmmmmmm", don't it? Don't associate my reading of an unambiguous ruling with agreement in what's stated from the bench- especially some nothing ruling at the trial court level. It does seem, however, that you are unable to disconnect your own bias from what you want an opinion to state, good or bad. Likewise, you want to talk shit to ppl who give you an honest opinion as to exactly what the law states (or "caselaw", if you can call this opionion that [rolleyes]). But, you nevertheless take your chances, possibly with your liberty, that, in a murky area, a gun-hating judge with black-robe disease (the power thing) won't hit you and hit you hard. Be warned. That certainly is true- they are out there (although stupid rulings are often founded in potential political fallout from outside sources rather than their own politics- very cowardly). For those that fear the judge hitting them hard for a 922(v) violation my advice would be to cut the receiver in two places and pour cement in the barrel. Or proper medication can also aid in one sleeping well at night. Ahh yes, thanks for at least being consistent. Here's your continued, and pathetic, inference that we are a bunch of paranoid sheep. It's a lot simpler- we are simply trying to wade through the law. You can keep making the inference all you want, it will not make it so (nor does it bother me); do what you want. Ah hum, well now, is this situation actually similar? I mean are people openly having carnal relations with horses at public horse shows with law enforcement present, while at the same time law enforcement is making arrests for illegal horse trading? Let say this is the case in Virginia Beach, I would then assume you would be the first to write letters to the Virginia Beach pony humping police asking for clarifications on certain minute aspects of the pony humping ban, and then actively debating these finer trivial points while oblivious to the fact that all the while the humping goes on, while the law is ignored by the pony humping police (cause they really don't care, they have more important things to do, and they tend to like humping ponies anywho). Then when it is pointed out to you that these finer points you love to debate don't have nothing to do with the situation as it exists in reality you would be quick to point out that you are just trying to make sure all the pony humpers are compliant. Wow, you really do have an imagination. Let me break it down for you simply: I will not break the law (as I read it) simply because violations of same are not prosectuted. BTW, you really do need to distinguish "caselaw" with actual prosecutions- don't rely so much on the former to make your point. The majority of state and federal criminal prosections are done without reportings. Rolling the dice implies some sort of risk don't it? Who says I am rolling the dice, or that there is a risk if you do? Who here knows who owned thier SAW on 09-13-94, hmm? Again, let me make it simple. If you are debating the wisdom of following the law based on the lack of "caselaw", you are rolling the dice. That was your argument. Back to Indelicato, funny that James Bardwell, Jagcap, and I have no trouble reading that one. Things that make you go hmm. Ha! Is that your retort to my reading of the case? "These other lawyers say it's so, so it must be so!" Why don't you just hold your breath till I agree. Let me tell you how I feel about your cite: If a defense attorney, like me, who is in court every day, or any AUSA in my circuit, were to attempt to rely on a Mag ruling from a nothing, whacked-out circuit, as "caselaw", we would get laughed out of the courtroom, by everyone (including the clerk). You keep dreamin, hmmmmmmmm. |