Ekie:

"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"

AS a receiver alone, It is a firearm, but NOT a SAW. Therefore, this line you keep quoting is irrelevant.

Hey NAM, you paying attention here, you see Boe Diddly put his 6920 upper on the lower he bought.  So now it is a SAW, purdy nice on too, cept the upper is black and the lower is grey, he is thinking about getting a Bushy lower for it later so it will match better.

Bo diddly bought a receiver. A firearm. A receiver in itself can not be a SAW. THerefore, he purchased a lower, which is not a SAW. Then put a pre ban upper on the lower. That is the textbook definition of a post ban assault weapon. Now, if bo diddly simply had the seller put his 6920 upper on the lower before the sale, it would be perfectly legal. A rifle exchanging hands keeps it's legal SAW status. A receiver cannot be a SAW.

I don't see what part you don't understand.

I can't follow you guys cuz you make this up on the go.  If you would stick with USC then things would go easier.  I thought we were talking law not religious ideals.  

"That is the textbook definition of a post ban assault weapon. Now, if bo diddly simply had the seller put his 6920 upper on the lower before the sale, it would be perfectly legal. A rifle exchanging hands keeps it's legal SAW status. A receiver cannot be a SAW."


WHAT GIBBERISH, that is the final straw.  You have now released the wrath of Ekie, I will expose you all for the Pharisees that you are.  Well, once I read my kids some stories and put them to bed, BUT AFTER THAT the TERROR shall begin!  Be warned, ah hum, ah hum...yeah.

Going to start a new thread on the subject of Pharisees and their leader the lord Bartlett, the ones who will save us all from the unclean things, the much dreaded postban lower receiver transfer, and other defiled things, (sure to be more half witted ideas that they will make up as we go along).  These Pharisees, that lurk at AR-15.com, the modern Mall Ninjas of Internet fame, the most self righteous of all troll dome, the keepers of secret knowledge and privileged scripture (ie letters from Bartlett).

Well anywho, got to go, check in later, it will be good.

BTW, if anyone wished to talk law here, I am available, please stick to the subject, made up self righteous ideals about unclean lowers will be handled in the new thread forthcoming.

Well.... loooks liek we have come to a conclusion. A receiver alone cannot carry the pre ban status unless sold with the upper reciever. Obviously this must be the case. After all... if ekie knew otherwise he wouldn't have posted that paragraph of useless gibberish. He couldn't think of anything intelligent to say, so he resorts to garbage. Thoughts anyone? Better speak now before the "Pharisees and their leader the lord Bartlett, the ones who will save us all from the unclean things" come and get us.

[rolleyes]

That is SO close to a perfect statement.  Let me continue it, and make it perfect:


A receiver alone cannot carry pre-ban status. It must be sold with an upper receiver that has features that place the completed firearm within the pre-ban configuration category.  

As an alternative, if the lower receiver alone is attached to a folding or collapsible stock, it retains its pre-ban status by virtue of its feature count, regardless of the configuration of the upper recever assembly.

I think that completely nails it.

As a result, I would recommend that if you buy or sell a pre-ban lower receiver, it should be shipped with a collapsible stock attached.
That will keep it strictly legal as pre-ban configured by the precise letter of the law as written.


CJ

Ahh.....cmjohnson....

i absolutely forgot that point. you sir are correct! One more addition: A Colt AR-15 receiver is pre-ban by name. Therefore such a lower could legally carry it's pre-ban status, as per 922 (v) (2).

So...we have:

A receiver alone cannot carry pre-ban status. It must be sold with an upper receiver that has features that place the completed firearm within the pre-ban configuration category.

As an alternative, if the lower receiver alone is attached to a folding or collapsible stock,OR is marked Colt AR-15; it retains its pre-ban status by virtue of its feature count, regardless of the configuration of the upper recever assembly.

There we go. Perfect.



I'm not sure what ekie is tihnking. Oh well.. who cares.

[:)]

Well said NAM.

I think I'm done with this thread.  I gave up when I realized he couldn't hold a serious debate without being snide and childish.

Peace [8P]

Ekie,

This is like reading the bible, who's version are you accepting?  Can I get an opinion on this? If you owned a pre-ban prior to the AWB, purchase a new upper and sell the old one that the SAW left the factory with, does the lower lose pre-ban status?  Does it retain it as long as you do, and lose it if you sell it?  Does a lower only lose pre-ban status if its sold on its own?  

Oh man, I thought I was done.

921(30)(B) defines a SAW as "a semiautomatic rifle that has an ability to accept a detachable magazine and has at least 2" ...let's say evil features.  A lower alone is not a rifle, and therefore cannot be a SAW.  At least that's my interpretation. [:)]

AR-FRANK...


you have somewhat of a point. My only thought is that a lower receiver by itself is concidered a firearm. BUT.....now that i tihnk about it... it is a firearm, but not necessarily a semi-auto. you could easily put a single shot upper on it.

ok... I'm going to have to agree with you on that frank...

i will correct my prior statement to show:

"A receiver alone cannot carry pre-ban status. It must be sold with an upper receiver that has features that place the completed firearm within the pre-ban configuration category.

As an alternative, if the lower receiver  is marked Colt AR-15; it retains its pre-ban status by virtue of it's specifically banned name, regardless of the configuration of the upper receiver assembly."

Does that sound good? i tihnk we might finally have a winner.

Sounds good to me. [:)]

The concept that a lower can "loose pre-ban" status and thus become "unclean" can not be found in United States Code.  It is a conceptual idea boarding on a religion, and is little importance to the student of Fed firearms law.

There is only one requirement regarding the grandfathering of a semiautomatic assault, that is that it must have been legally owned on 09-13-94.  Any other requirements are simply made up and are only held by the self-rightous among us who wish not to touch the unclean thing, and those that are deceived by the same.

"A receiver alone cannot carry pre-ban status. It must be sold with an upper receiver that has features that place the completed firearm within the pre-ban configuration category.

As an alternative, if the lower receiver is marked Colt AR-15; it retains its pre-ban status by virtue of it's specifically banned name, regardless of the configuration of the upper receiver assembly."

All well in good except this part:

"It must be sold with an upper receiver that has features that place the completed firearm within the pre-ban configuration category."

Where the heck does that come from?  Can't seem to find it in my copy of USC.  Already asked for it a few times, seems quite clear you already know it ain't there.  That being the case you guys are more then welcome to follow this self imposed rule, but why should the rest of us?  You might find a lower sold without the upper to be a unclean thing and that is fine and dandy, but when you seek to impose your religion on us then we done got a problem.

Oh yeah, here is a brain teaser fer ya, please define the term postban, hehe.  Good luck, will be looking for that one.

OK, I give up....Im off to go be self-righteous with my two AR's I owned prior to the ban (I didnt prove my lower intelligence by saying pre-ban, happy?).

What the hell dude, I think people are just tring to understand.

"OK, I give up....Im off to go be self-righteous with my two AR's I owned prior to the ban"

That's cool.

"(I didnt prove my lower intelligence by saying pre-ban, happy?)."

Sure, nothing wrong with using the term pre-ban.

"What the hell dude, I think people are just tring to understand."

I use to think that.

Ekie,

you obviously don't give shit what the law is. you insist you are correct when everyone else has agreed otherwise. go ahead and make whatever weapon you want...legal or not. When you get busted, i'll be laughing. Meanwhile, the rest of us will play it safe and abide by the rules along with ATF rulings.

you obviously don't give shit what the law is."

You mean 18 USC section 922(v), why yes I do, and have referenced it many times.  Why have you not?  Could it be that your stance is not found in law.  If it was you would cite it, right?

"you insist you are correct when everyone else has agreed otherwise."

I say the law is what it says and nothing more.  Why should I agree with you rather then the law, peer pressure, LOL.

"go ahead and make whatever weapon you want...legal or not. When you get busted, i'll be laughing."

Busted for what?  Name one person that has been busted for a 18 USC section 922(v) violation, and that ain't no trick question.

"Meanwhile, the rest of us will play it safe and abide by the rules along with ATF rulings."

What ATF ruling?  There is a ATF ruling on this subject, is it another one of those secret rulings LOL, man that is good.  I call you on this bluff buddy, lets see you post it.

So I guess that means you are not going to explain where the law says grandfathered assault weapon can become postban, or what postban means.  Why all the secrets, please tell us from where the fountain of knowledge can be obtained, why the suspense?  Are you hiding something?

read the prior posts. everyone has come to the same conclusion as to wht the law means. you are the only who differs in opinion. I have cided the federal laws reguarding this case plenty of times before. go back and read. i am not goign to repeat myself.

As AR-FRANK said:"I think I'm done with this thread. I gave up when I realized he couldn't hold a serious debate without being snide and childish."

I have come to the same conclusion. I have made my point. The general consensus agrees with me. Good day.

"I have come to the same conclusion. I have made my point. The general consensus agrees with me. Good day."

Solid legal arguement there.

This discussion (argument, really) is rapidly becoming rather circular.

Here's the problem:

The BATF is the agency that interprets firearms laws and the courts USUALLY accept that information in their findings and determinations of law.

The courts are NOT bound to accept the BATF's definitions, but they PROBABLY WILL in most cases.

Therefore, it is prudent to accept the BATF's rulings and opinions as a matter of course.  While it IS possible that they can tell you something that you can't read out of the relevant section of the U.S. Code or CFR,  and they have CERTAINLY done so in the case of this ruling that a stripped pre-ban lower loses its pre-ban status if it's transferred in that condition, it's also likely that the courts will not disagree with the BATF in most cases.

Yet...it is true that there is no specific reference in the USC or CFR that states that a stripped lower (or rifle stripped of its pre-ban features) which was made before the ban date will lose its pre-ban status if it is transferred in that condition from one owner to the next.   That is a BATF opinion only.    Yet it holds weight with the courts.

Consistent?  No.  Reasonable?  Certainly not.  But would it be enforced as law?  Probably.

The burden of proof rests with the government. Remember that.  They'd have to PROVE that you have a lower receiver that was transferred to you without being attached to components that put it within the pre-ban category.     If I wanted to buy a stripped pre-ban lower from a friend of mine, as it was a private transction I wouldn't care and nobody would ever know that it was stripped at the time of transfer.   I certainly wouldn't be calling the local BATF agent over to take a look at it!    

Privacy is a wonderful thing.  But it works only if things are KEPT private.

If you have a pre-ban lower and nobody can PROVE that it was stripped of its pre-ban features when it was transferred to you,  then build it up as a pre-ban rifle and be done with it.    But if there is EVIDENCE that it had in fact been stripped of those features at the time of transfer, then you probably shouldn't.

More than likely, no such evidence exists.  So go for it.

CJ

This discussion (argument, really) is rapidly becoming rather circular."

Why yes it has, and am glad to see some are willing to argue this on the basis of law.

"The BATF is the agency that interprets firearms laws and the courts USUALLY accept that information in their findings and determinations of law."

Would agree in reference to the ATF's regulations and rulings.

"The courts are NOT bound to accept the BATF's definitions, but they PROBABLY WILL in most cases."

Would agree in reference to the ATF's regulations and rulings.

"Therefore, it is prudent to accept the BATF's rulings and opinions as a matter of course."

Agreed on the rulings, not on opinions or should I say letters from Bartlett.

"While it IS possible that they can tell you something that you can't read out of the relevant section of the U.S. Code or CFR, and they have CERTAINLY done so in the case of this ruling that a stripped pre-ban lower loses its pre-ban status if it's transferred in that condition, it's also likely that the courts will not disagree with the BATF in most cases."

This is where you and I are butting heads, this word play.  A letter from Bartlett is not a ruling, they are two separate things.  Talked to you about this already, am not sure if you are simply unclear about the difference between a ruling and letter from a cop named Bartlett, or what?

Again I quote from James Bardwell addressing the issue of ATF letters:

"..attorneys from the Department of Justice, not the ATF, will prosecuted you for a violation of the law. Ultimately what the DOJ thinks the law means, not the ATF, will determine wether you go to trial."

"Yet...it is true that there is no specific reference in the USC or CFR that states that a stripped lower (or rifle stripped of its pre-ban features) which was made before the ban date will lose its pre-ban status if it is transferred in that condition from one owner to the next. That is a BATF opinion only."

Bravo, man I feel better about this whole thread now.

"Yet it holds weight with the courts."

Ah man, this is just a letter from a cop, gee whiz, you are so close to getting this.

"Consistent? No. Reasonable? Certainly not. But would it be enforced as law? Probably."

Enforce a letter as law, unspeakable injustice.

"Consistent? No. Reasonable? Certainly not. But would it be enforced as law? Probably."

cmjohnson...i couldn't agree more. Maybe in ekie's fantasy land, the law is interpreted differently. But here in reality, we see the law is often what the department interprets, but what the peopel want it to mean.

Consistent? No. Reasonable? Certainly not. But would it be enforced as law? Probably.

cmjohnson...i couldn't agree more. Maybe in ekie's fantasy land, the law is interpreted differently. But here in reality, we see the law is often what the department interprets, but what the peopel want it to mean."

Well Steve already covered this rather well, and I touched on it earlier, but got a few more things to add..

It is the prosecutor that will interpret the law prior to going to court, in the case a prosecutor from the Department of Justice.  Cops such as Bartlett and your local sheriff for example don't prosecute individuals, but they make arrests though.

You see for medical advice the best source is a MD, not a hospital administrator.  For legal advice the best source would be a lawyer, not a cop or some pin head in a suite that works in law enforcement (Bartlett).  Now it is not a bad idea to ask cops legal questions to get an idea what they are up to, and getting it in writing may not be a bad idea either.  This particular letter is worthless for the purpose of figuring out what the cops are up to for two reasons:

1) It is flat out incorrect, in that there is no law that says the exception found in 18 U.S.C. section 922(v)(2) does not apply if a SAW was at some point between 09-13-94 and now transferred without it's upper.  Furthermore if there was one it could be found and posted here.

2) It is not a good indicator of what they are up to in that the ATF is not actively investigating 18 U.S.C. section 922(v) violations by the end user (you and me).

I think I see some lights coming on, am sure progress is being made here (no not talking about true believers in letter laws like you NAM).

Looking forward to more posts, I could use some more material, thanks.

Gentlemen, reading the last page of posts, I fall directly in the category of having a receiver that I purchased from Bushmaster on 10/25/94. It was a complete lwr with all parts including a telescoping stock. So as purchased it had all the features to be classified a SAW. When I asked Bushmaster about there classification of the lwr, they said it was a post ban receiver. I was some what shocked with the note. They said the lwr was first sold on 8/31/94, but was then sent back to them for some reason. It was then sold to me. At the time I purchased it, my understanding was that, if it was made before 9/14/94, it was preban. At what time did the ruling change about it needed to be a complete gun. And with my receiver already having the telescoping stock, what do I do with it now? I have had a upper on the receiver since 10/94. Sorry if this is the wrong area to ask the question, but it seemed like the right place. Thanks

First, let's look at what the "letters" are:  They are specific-case responses to questions posed by individuals or companies requesting clarification or exposition on the ATF's position as to a technical/legal issue.

The one thing a letter can actually do for you in a court of law, if you are the one to whom it was addressed in reply, and you based your conduct/actions on the answer, is negate INTENT.  Most criminal statutes require that the accused had the INTENT to break the law.  As a further condition, it's presupposed in most instances that breaking the law is prima facie evidence of intent to do so - ignorance of the law is not an excuse.  The one area of contention for intent is usually that if the law is so obscure no normal person could reasonably be expected to know the activity was illegal.  However, if you request specific direction from the law enforcment body charged with interpreting and enforcing a law, and follow their advice, you can show that you had no intent to break the law, having solicited information and followed it.  Not an ironclad guarantee, but much better than "I didn't know...".

Letters of that type are not so applicable to persons and situations other than those explicitly covered by the letter.  However, they ARE good general indicators of the (in this case) ATF's position on a particular legal or technical issue.

Back to point:  ATF issued in one of those letters an opinion that a grandfathered pre-ban "assault weapon", either stripped of its AW features, and the parts disposed of; or transferred to another person stripped of those features, would lose its grandfathered status.  That determination does not explicitly apply to anyone else's situation, but should be a clear indicator that if you were to strip your preban of its features and sell off the parts to reassemble it; or transfer it to another person stripped of those features, and ATF somehow got wind of it, and hadn't changed their minds on that position, they would recommend to your prosecutor that they felt you'd violated the law.

Then, in this hypothetical situation, you might find yourself charged with possession of a 'semi automatic assault weapon', and if it came to trial, you'd claim as a defense that it was a grandfathered pre-ban.  The prosecutor would call an ATF "technical expert" or some such to refute your claim, most likely, and then it'd be up to the judge and/or jury to decide if they'd take ATF's technical interpretation or believe your "once a preban always a preban" interpretation.

Not until that occurs and you get some court precedent, or ATF formalizes their position with a revenue ruling, will the "losing grandfathered status" thing become set in concrete one way or another.

If you, Ekie, can somehow distill this down to something we can post without going three pages and several weeks every time it comes up, I'd be personally grateful.  Until then, when asked, I'll give my same answer and advice - because it's quicker and less stressful.

Okay, I was told that my argument is difficult to follow.  So here is another attempt, let me know if you can follow me here.

Which is correct, one or two?:

1) 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

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.  This exception will be rendered void if the if the possession of this semiautomatic assault weapon is transferred on a date after enactment of this subsection in a state in which is does not meet the definition of a semiautomatic assault weapon.

One is law, and two is something we read in a letter from the ATF tech branch.  So the choice is law or a letter.  I am going with the law, how bout you guys?

So, how did I do?  Is that better?

Glad to see you chime in Circuits.  Sure this whole subject could be cleaned up, this thread is long and goofy.  Gimmie some time and I will fix it.  Gotta go....

I think this thread has been instructive and valuable, and it has gone a long way toward clearing up what is and what isn't important with regard to opinions.

Let me touch on one particular part that I haven't touched on before:

Bardwell letters:  This collection of ATF letters is a valid and useful reference,  though some of these letters directly contradict each other.

Bartlett:   Who the hell's Bartlett?   If he's not an empowered policy maker with the BATF or a judge, his opinion is USELESS before the court.  I've avoided making such a statement until now, but I feel that it's necessary so that you know that I don't consider Bartlett's opinion to be worth a squirt of used beer and neither would the courts.

And that, my friends, is that.  From my perspective, anyway, there is not much else to really be unclear about regarding the AW ban's specific language and meaning.   What is still unclear is a result of the law as written itself. It is not a crystal clear piece of legislature by any means.   If utterly fails even to fulfill its original intent, which was to ban all the fun guns that we love so much.  By identifying them by specific characteristics that were not integrally related ot the gun's functionality, it was born to fail as cosmetics can be slightly altered without affecting functionality or utility to any significant degree.

Heck, a compensator is actually BETTER for your rifle's pointability than an A2 flash hider anyway, especially in rapid fire!

The AW ban is amusing to me, because it was crafted by politicians who were clearly well out of their depth when asked to determine what's important to a rifle or handgun and what's not.  They shot themselves in the ass, so to speak.
Their pointless legislation actually encouraged creativity and innovation and has resulted in many rifles that are both legal by the letter of the ban and MORE functional and useful than their pre-ban configuration!



CJ

Reactor111:

Welcome aboard, you show some spunk posting here for you first post.  

There are no rulings put out on this subject.   The ATF has supplied "information" on this subject from day one.  The ATF stance on the subject was planned out before the bill was signed into law on 09-13-94.  On that very day they were at Bushmaster (I called them that day, and asked what was going on).  The ATF stance that day and hence forth that a rifle could not be grandfathered unless it was in complete form, as in all the parts there to build one.  So Bushmaster had more lowers on hand then complete parts kits.  So some serial numbers were deemed grandfathered while others were not, yours was not, only so many parts to go around.

Circuits

I am not sure, but doesn't that stuff about a letter being of some value in court to the recipient only apply in the case of tax law, ie NFA?  I know you are up on NFA stuff so thought you might be transferring this over to other areas.  There has got to be a legal eagle here that could clear this up for us.

"However, they ARE good general indicators of the (in this case) ATF's position on a particular legal or technical issue."

In general I agree with this, but not with this particular letter, considering the enforcement, or lack of it in regards to the end user and 18 USC section 922(v).

"but should be a clear indicator that if you were to strip your preban of its features and sell off the parts to reassemble it; or transfer it to another person stripped of those features, and ATF somehow got wind of it, and hadn't changed their minds on that position, they would recommend to your prosecutor that they felt you'd violated the law."

Hmm, could be.

"Then, in this hypothetical situation, you might find yourself charged with possession of a 'semi automatic assault weapon', and if it came to trial, you'd claim as a defense that it was a grandfathered pre-ban."

I am still not convinced of this defence concept, 18 USC section 922(V)(2) is not a defence against prosecution, it is a exception, two different things.

"Not until that occurs and you get some court precedent, or ATF formalizes their position with a revenue ruling, will the "losing grandfathered status" thing become set in concrete one way or another."

Agreed, but such a revenue ruling could later be removed.

Well...ekie.....im glad we agree on at least one tihng... if that is the only thing. Reactor is screwed. Your lower is listed as a post ban.


Now.....

We keep beating the dead horse. A lower recevier alone cannot, by definition, carry the "pre-ban" status. We agree on that.. correct?

So....if i bought a stripped "pre-ban" receiver...how can you say that it is legal to put a pre-ban upper on it and magically make it legal. Now...bear with me. If it could be proven that  the receiver was stripped when aquired....and then assembles into a SAW...that would lead one to beleive an illegal SAW was constructed. Of course....if no one knows....


Oh well...it seems we are beating a dead horse here. i could care less what anyoen else does. I know my rifle is legal.

cmjohnson

"I think this thread has been instructive and valuable, and it has gone a long way toward clearing up what is and what isn't important with regard to opinions."

Great, was starting to think the entire thing was a fart in the wind.

"And that, my friends, is that. From my perspective, anyway, there is not much else to really be unclear about regarding the AW ban's specific language and meaning. What is still unclear is a result of the law as written itself. It is not a crystal clear piece of legislature by any means. If utterly fails even to fulfill its original intent, which was to ban all the fun guns that we love so much. By identifying them by specific characteristics that were not integrally related ot the gun's functionality, it was born to fail as cosmetics can be slightly altered without affecting functionality or utility to any significant degree."

Well stated.

NAM

Glad to see you back.

"We keep beating the dead horse. A lower recevier alone cannot, by definition, carry the "pre-ban" status. We agree on that.. correct?"

Yeah that is sort of a dead horse, and yes a lower can not be a SAW, the converse would be devastating to the industry.

"So....if i bought a stripped "pre-ban" receiver...how can you say that it is legal to put a pre-ban upper on it and magically make it legal. Now...bear with me. If it could be proven that the receiver was stripped when aquired....and then assembles into a SAW...that would lead one to beleive an illegal SAW was constructed. Of course....if no one knows...."

Because that particular SAW was legally owned on 09-13-94.  That is the only requirement for this SAW in question to be excluded from 18 USC section 922(v).  The exception in the law 18 USC section 922(v) only requires that it be a SAW on that one day, that being 09-13-94, and that it be possessed legally on that same day.  If the lawmakers wanted these SAWs to remain SAWs during every subsequent transfer after 09-13-94 they would have included that verbiage.

As a side not this verbiage would be tough to write clearly.  I offered a version that would allow a SAW legally possessed on 09-13-94 to later on not be included in 18 USC section 922(v)(2):

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. This exception will be rendered void if the if the possession of this semiautomatic assault weapon is transferred on a date after enactment of this subsection in a state in which is does not meet the definition of a semiautomatic assault weapon.

Okay, lets say that was the law, just for sake of discussion.  Then Bartlett would surly be correct.  Now what would happen if you bought a NIB Colt's Sporter Match Target Model that was legally possessed on 09-13-94 just today, and once you opened the box you found the firing pin was missing.  So you call the dealer and he says, oh yeah, I forgot I broke one on anther rifle just last week and it I took that one out.  Oh no, you just got the shaft huh?  Your rifle was just transferred to you and it ain't no SAW, heck it can't even shoot one round.  You see such a standard would be hard to work with, and the ATF would have to write clarifying language in the form of regulation to make it work.  Hehe, I dare someone to write a letter to Bartlett and ask him what would be the legal ramifications if the new owner if he put a new firing pin in it.

Let take anther look at Bartlett's letter:

"Since the receiver is no longer possessed with all parts necessary to assemble a complete semiautomatic assault weapon, it no longer meets the definition of a semiautomatic assault weapon. The receiver does not meet the exemption in section 922(v)(2) and assembly of this firearm in the configuration of a semiautomatic assault weapon would be prohibited under section 922(v)(1)."

So what would happen if you were out hunting with your grandfathered semiautomatic assault rifle and you took the upper off to get a look cuz you just got a double feed.  While looking it over you drop the upper into the river and are unable to recover it.  Oh boy, that is trouble huh?

Lets narrow his letter down even farther:

".....and assembly of this firearm in the configuration of a semiautomatic assault weapon would be prohibited under section 922(v)(1)."

Well actually Bartlett assembly is not illegal under 18 USC section 922(v), only possession, transfer, and manufacture is covered under the statute.

Gee I could go on, and on, and on, here.  Just too many holes in this one.

I just HAD to go back and review 18 U.S.C. 922 (all of it) and in fact I found NOTHING in the written letter of the law that supports Bartlett's position.    

I just had to be sure.

There is NO language in the law that supports the concept of a weapon losing its pre-ban status, PERIOD.

Not in the US Code, and not in the Code of Federal Regulations.

I believe now that a challenge to this absurd BATF position would be successful in any honest court in the land.   They are attempting to CREATE law, which they are not entitled to do.


I found this other interesting tidbit regarding high capacity magazines in subsection W:

(w)


(4)

If a person charged with violating paragraph (1) asserts that paragraph (1) does not apply to such person because of paragraph (2) or (3), the Government shall have the burden of proof to show that such paragraph (1) applies to such person. [b][red]The lack of a serial number as described in section 923(i) of this title shall be a presumption that the large capacity ammunition feeding device is not subject to the prohibition of possession in paragraph (1).[/red] [/b]

Interesting, huh?

CJ

Hey all,

I am no lawyer, but isn't everyone missing these parts, which precede and define the terms clearly, which makes the answer pretty straight forward?

921 (3) 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.

921 (7) The term ''rifle'' means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of an explosive to fire only a single projectile through a rifled bore for each single pull of the trigger.

921(30) The term ''semiautomatic assault weapon'' means -(A) any of the [b]firearms[/b], or copies or duplicates of the [b]firearms[/b] in any caliber, known as - [b]LIST NOT COPIED[/b]

(B) a semiautomatic [b]rifle[/b] that has an ability to accept a detachable magazine and has at least 2 of - [b]WELL KNOWN FEATURES LIST OMITTED[/b]

Using the definitions, wouldn't one put 921(7) in where 921(30)(A) uses the word [b]Firearm[/b]? This clearly includes a receiver only as it is listed as being a [b]Firearm[/b] in 921 (7), at least with regards to the listed firearms and their [b]copies or duplicates?[/b] Note that the definition also clearly includes anything that can be readily converted to such a device, which would have to also include a receiver, it seems to me.

Moving on to 921(30)(B)and subsituting 921(7) for the word [b]Rifle[/b] would seem to define the receiver as a SAW as well, even without an uppper, if it had 2 of the evil features on or before the cutoff date and was legally possessed. The only troubling part might be the barrel statement, but it is explicitly stated that the weapon has only to be made or remade, designed or redesigned to fire a single projectile through a rifled bore, not that it has to have a rifled bore or anything else attached to accomplish the firing, for that matter.

Edited to add a thought about receivers as duplicates: As far as I know, every AR type receiver made by almost any manufacturer you can name will accept any set of parts from any other manufacturer, and all are easily converted to a complete firearm by using almost any brand of upper. I cannot think of a better definition of "duplicate", which would seem to me to make for a good argument that all receivers legally possessed before the ban date would fall under 921(30)(A), making them a SAW.

I do not pretend to know how the law works, but it seems to me that the first place a judge is going to look to define what is meant by the SAW language in 922, is in the very explicit definitions outlined in 921. Am I wrong about this, all you lawyer types?

Ray

Ray,

one note....the lower aloen cannot be a SAW, because of the options on uppers. a lower can be used on a pump upper. THat would not be semi automatic, therefore not a SAW. True, the receiver is considered a firearm, but it cannot be concidered a SAW by itself.

Ray

Well we don't want to go down that road.  There are many companies that are manufacturing AR clone type rifles.  We don't want to see them put out of business, and thier employees unemployed.  Then there are all the customers that bought rifles these clones since 09-13-94, so we would have to round all those up.  Just a big cluster, forget that one.

Oh yeah, and that whole section is mute, would not last a NY minute in court, and will probably never go there just for that reason.

So we all ignore it.

"There is NO language in the law that supports the concept of a weapon losing its pre-ban status, PERIOD"

By George you got it cmjohnson.

"I found this other interesting tidbit regarding high capacity magazines in subsection"

They had to put that in there, or all hell would have broke loose trying to figure out which mag was okay and which not cuz mags typically have no serial numbers unlike firearms (yeah sure some don't, but not many).

Considering that we can not find any regulation, law, ruling, etc that supports Bartlett's position I say we all write him different letters asking for clarifications.  I mean how else can we expect to comply without knowing how his idea is supposed to work?

Here is another part of Barlett's letter:

"Provided that the original components were held by the owner and reinstalled on the rifle, it is our opinion that the rifle would still qualify as an exempted semiautomatic assault weapon even though it had been temporarily assembled in a different configuration. We note, that mere disassembly of a semiautomatic weapon by an owner would not remove the firearm from the definition of a semiautomatic assault weapon nor would the reassembly constitute manufacture of a prohibited semiautomatic assault weapon."

Okay, say I have a grandfathered semiautomatic assault rifle and only one upper for it.  I ship the upper to TANKS to get a ramp job done on it.  UPS losses the upper.  So now what, is my rifle no longer grandfathered, oh man, how silly can you get?

NAM,

You are right in that in 922(30)(B) the definition of a SAW includes a statement that it is a  semi-automatic, which a receiver is not without some other parts....

However,

922(28) defines a semiautomatic rifle thusly:

The term ''semiautomatic rifle'' means any repeating rifle which utilizes a portion of the energy of a firing cartridge to extract the fired cartridge case and chamber the next round, and which requires a separate pull of the trigger to fire each cartridge.

Obviously, a receiver does not have the parts needed to do extraction and chambering.

But, using the definition of a "rifle" found in 922(7) and applying this to the word "rifle" used in 922(28) would lead me to believe that it is a rifle (and therefore a semi-automatic rifle) if it was designed, redesigned, or made/remade to be one, which all receivers clearly are. It seems like a design/manufacturing intent sort of definition. I suppose that if this definition was adopted, you might have to show that whoever made your receiver did not offer a pump action for it, so their design/manufacturing intent was for use on their semi-automatic firearms. The design/manufacturing intent definition applied to the term "rifle" is also consistent with the way "firearm" is defined, where the design intent is specifically mentioned, and the receiver is explicitly included.

I do not know if, in the legal world you have to consider the term enclosed in "" as a whole (like "semi-automatic rifle"), or if you can turn to a prior definition of a word contained in the "" if it is available??? It would seem logical to use all of the definitions available, in the right order, if there was a doubt or dispute over any portion of the term in question, but hey, what do I know?

922(30)(A) uses a different term "semiautomatic assault weapon" and defines it as a "firearm" and duplicates or copies of such firearms. That part seems pretty clear to me. If you can prove you receiver was a duplicate of one on the list, you win.

The features test works if it was capable of accepting a detachable magazine, AND had two features, of which a folding or telescoping stock, and a pistol grip could be already attached to the receiver. How could this not be a SAW? It exactly matches the test laid out in the law with regards to features.

I have to believe that the construction of the law in this case is meant to be an OR function, not an AND function, which means that 922(A) and 922(B) stand alone. Otherwise, nothing would be a SAW unless it was listed in 922(A) AND had the 922(B) features. I do not think anyone believes that this is the case, so it seems to me that a receiver that met the 922(B) features test must be a SAW.

It would be nice to have Steve comment on my reading of the definitions and how they work together.

Ray

Ekie.

I understand the the "duplicate" issue is a snesitive one, but I think you are overestimating the power of posts on AR15.com if you think that the legal talent of the antis depends upon reading our posts for ideas for their legal cases. Either that or you are underestimating their lawyer's skills.

Your statement about "that whole section is mute" is based upon what? A Supreme Court ruling tossing it out? If not, how hard can it be to prove an identically machined lower is a duplicate? Any compentent machinist could prove that in minutes.

You do not have to like the implications of such a conclusion, but there it is.

Ray

Ray

James Bardwell already covered this purdy well, so here is his take:

"The definition of "semiautomatic assault weapon" is the heart
of the law.  It is also sure to be in court, as it has language
that has already been voided in previous challenges to other
assault weapon ban laws.  In the 6th circuit court of appeals
decision in Springfield Armory v. Columbus, 29 F.3d 250 (6th Cir.
1994), that court struck down a ban on listed guns very similar to
this, as well as a ban on "copies" as being vague. That court
suggested a criteria test, also in this law, would pass muster
under the standards they were applying.  The Colorado Supreme court
decision in Robertson v. Denver, 874 P.2d 325 (Colo. 1994), a
challenge to the city of Denver assault weapon ordinance, also
struck down one of the "assault pistol" criteria here, guns derived
from automatic weapons, as being too vague.  The court said it was
unreasonable to expect gun owners to know or research the design
history of their guns. The court in the Columbus case agreed with
that logic, and also struck down a similar clause of the Columbus
ordinance.  Both this law, and the Denver and first Columbus
ordinances are based, more or less, on the California Roberti-Roos
assault weapons law.

    Additionally, some of the "listed" guns either aren't semi-
autos (e.g., the "Steyr AUG" is a machine gun, the semi-auto is the
AUG-SA), or aren't the names of guns sufficient to identify them.
For example, the "Colt AR-15"; no such gun was ever made by Colt,
the only gun ever made whose name was "AR-15" that I have been able
to track down was the first prototype M-16 machine guns made by the
ArmaLite division of Fairchild.  Some M-16 machine guns were marked
"AR-15 Model 614"; early Colt made semi-auto rifles are marked" AR-
15 Model SP1".  No Colt gun was ever called just "AR-15", to my
knowledge.  The "Norinco, Mitchell, and Poly Technologies Avtomat
Kalashnikovs (all models)" clause is gibberish.  All of these
either don't ban anything, or are too vague to be enforceable.  
BATF apparently agrees, they have approved the sale of, as non
"semiautomatic assault weapons", AR type rifles, including ones
made by Colt, that have only one bad feature, a pistol grip. They
have approved the sale of a SWD M11/9 gun, called the PM11/9, which
is the same as the banned gun except it has an unthreaded barrel,
and a 10 round magazine.  It also has a different way of latching
the mag than the M11/9.  Likewise Intratec has gotten approval for
a version of the TEC-22 called the "Sport 22", that doesn't have a
threaded barrel, and comes with a 10 round magazine.  Intratec has
also gotten approval for the AB10, a pistol that is essentially the
TEC-DC9M, except that it has no threads.  The DC9 type, with its
barrel shroud, is apparently successfully banned.  I am unsure why
the slide on most pistols (except perhaps the Beretta 84, 85 and 92
and similar copies) is not a "shroud".  But what do I know.  AK and
AKM copies, mutilated so as to not appear to be of the
semiautomatic assault weapon type (see the discussion of 922(r),
above) were also imported after 9/13/94.   As were sporterized
copies of the HK91, from Greece and Portugal.  Inclusion on the
list, even when the model actually exists, is meaningless, as
banning "copies" is unconstitutionally vague, according to the 6th
circuit in the Columbus case, and one need only change it a bit,
and change the actual name, and it is off the list."

[URL]http://www-2.cs.cmu.edu/afs/cs/user/wbardwel/public/nfalist/semi_auto_faq.txt[/URL]

"Don't confuse the criminal intent component of a crime with ignorance of the law; the latter never being a defense to a crime."

In the case of 922(v) this applies:

(B) knowingly violates subsection (a)(4), (f), (k), (r), (v), or (w) of section 922;

From what I have studied, the courts have a very low standard for what all knowingly involves.

Ekie,

Although I agree with the comments about the definition being the heart of the matter, and it may be that there is some of case law on similar laws, is there any definitive ruling on 922 at the district appeals court level at least? By the position that the ATF is taking, I would infer that they have given up on the "duplicate" argument as being too vague, at least for enforcement purposes and are relying solely on the features aspect as of the ban date. Meaning, you possess a firearm that has the features, you can be charged (as well explained by Steve in another thread). You can then argue the fine points in the courts.

However, if the receiver was assembled with a tele-stock and a pistol grip at minimum before the ban date, I think it is a legal SAW, no matter what the ATF has to say about a subsequent transfer.

Even if one were to ascribe to the notion that the ATF letters have some legal merit, how can they square that position with the position they take on full auto recivers in the exact same situation?

Ray

"is there any definitive ruling on 922 at the district appeals court level at least?"

You mean the list, I think it has been to court, don't remember what happened.  It did not involve a prosecution it was a law suit.  Troy made mention of it too.  I could look it up, but would take me a few days.

"By the position that the ATF is taking, I would infer that they have given up on the "duplicate" argument as being too vague, at least for enforcement purposes and are relying solely on the features aspect as of the ban date."

Yes that is the case with the ATF, they have approved the continued production of AR-15 clones.

"However, if the receiver was assembled with a tele-stock and a pistol grip at minimum before the ban date, I think it is a legal SAW, no matter what the ATF has to say about a subsequent transfer."

Well sure you could, but how would you do that argument and leave out production after 09-13-94?

"Even if one were to ascribe to the notion that the ATF letters have some legal merit, how can they square that position with the position they take on full auto recivers in the exact same situation?"

Well, have to say I don't know much about NFA stuff, Circuits does though.  

BTW, I called the Tech Branch this morning to feel them out on this issue.  I asked about the letter, the first thing he told me was that the letter was specific to the individual.  Then he told me basically the same story as is in Bartlett's letter.  Of course I did not argue with him, his job does not involve debating law with callers, or I suppose it don't.  Went ahead and asked him what would happen if UPS lost your only upper for your grandfathered semiautomatic assault rifle, he said "you would be up a creek without a paddle".

We are going to have to have a name for this, how about the Bartlett revision?

So we got the answer on how the Bartlett revision applies in a few cases, now am curious how the Bartlett revision applies in this case:

You have one grandfathered semiautomatic assault rifle a FNC, and you only have the parts in your possession for this one rifle, no spares.  At the range your firing pin breaks.  So now it ain't no SAW.  So you can't replace it and keep it a SAW?  

What you guys think the Tech Branch will say about that?  You FNC guys would be in trouble here.  The ATF could find out if you bought a replacement firing pin for your FNC if the transaction was done on plastic, then ask to see it.  Hehe, this is a riot, have not had this much fun in awhile.

I got it.   We need to file a class action lawsuit against this Bartlett character for appointing himself king and making up laws, both without any legal authority to do so!

Any higher court will adopt a strict "letter of the law" approach, and will tend to use less and less of the "what would a reasonable man think" approach, as when you get higher up the court totem pole, you get stricter, By-The-Book interpretations.

I think that a great many of the BATF's rulings would not stand up before any U.S. District Court or the Supreme Court.   This also applies directly to King Bartlett's musings.

I agree, this has been a fun thread.   Who knew that arguing points of law could be fun?   (Well, actually, most GOOD trial attorneys love the process!)


CJ