There has been a continued rageing debate as to wether a grandfathered semiautomatic assault weapon or SAW would loose it's "pre-ban" status if sold as a stripped lower (the receiver in a AR-15 type rifle, a firearm under US Fed law), or as a lower assembly.  Due to certain factors, such as my posts the current thread has veered off into LALA Land so to speak so this is an effort to correct this.

I will address this subject matter in such a way that those that are unfamiliar with the this can follow along (at least initially).  There are many members and visitors that are new to this, but have a very real interest.  Just wanted to be sure that I did not offend any familiar with all this with my use of "hand puppets".

The law in question is 18 U.S.C. section 922(v) and went into effect the day it was signed by then President Clinton on 09-13-94.  The implementing regulation as established by the ATF is 12 CFR  178.40.  The law, that is 922(v), or more commonly as the assault weapon ban, or more loosely the Brady bill, makes it a Federal crime to possess, transfer, or manufacture a SAW.  

The definition of a SAW is found in 18 U.S.C. section 921(a)(30), and in implementing regulation 12 CFR 178.11.  It contains two parts, one is a list of names of firearms, and the other a list of features that make for a SAW.  A rifle must have a certain number of features before it is defined as a SAW according to the second part.  The first part of the law, the list of names is not referenced very often in advise given by the ATF Tech Branch, (the part of the ATF that answers questions regarding various aspects of Federal firearms law).  So in large we are concerned with these features (evil features is a popular descriptive term) that make for a SAW,

There are several exceptions to the ban of possession, and transfer of SAWs, the one in question is found in 18 U.S.C. section 922(v)(2), it reads "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".  SAWs that fit into this exception are commonly referred to as "pre-ban", or "grandfathered", or "grandfathered pre-ban".  Because of their status such pre-ban SAWs bring premium pricing, and due to the severe penalty for the possession of a SAW by a commoner/surf/subject/citizen/non LEO (pick your term) that is not a grandfathered pre-ban there is much tension on the subject matter of wether or not a particular SAW is pre-ban or not.

The ATF since day one (09-13-94) has maintained that only complete firearms, or complete firearms in "knockdown" condition (with restrictions) can possibly qualify as meeting the definition of a SAW found in 921(a)(30).  This is a favorable view point, the converse would be disastrous.  If the ATF maintained that a mere AR-15 type receiver (just an example, this is the AR board) was a SAW then this would prohibit current manufacture of receivers, that would be real bad.  As a result you will not see me defending the idea that a stripped lower or lower assembly meets the definition of a SAW.

So lets get to the question, would a stripped lower, or lower assembly from a grandfathered pre-ban AR-15 type rifle loose it's grandfathered status if possession was transfered?  Or in other words can you buy a stripped lower, or lower assembly from a  grandfathered pre-ban AR-15 type rifle, and once it was in your possession assemble it as a SAW without breaking the law?

Here are some links to past threads that are relevant to this subject.

[URL]http://www.ar15.com/forums/topic.html?b=1&f=6&t=127293&w=searchPop[/URL]

[URL]http://www.ar15.com/forums/topic.html?b=1&f=6&t=139525&page=2[/URL]

This is the original one with the ATF letter, I managed to find a link to it:

[URL]http://www.ar15.com/forums/topic.html?id=74364[/URL]

DEPARTMENT OF THE TREASURY
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS
WASHINGTON, DC 20226

NOV 1 6 2001

Dear Mr. XXXXXXXXXX:

This refers to your letter of March 19, 2001, in which you ask about the status of certain semiautomatic assault weapons which have been altered to another configuration.

As defined in section 921(a)(30), of Title 18, United States Code (U.S.C:), the term "semiautomatic assault weapon" includes certain named weapons and certain semiautomatic rifles, pistols, and shotguns that have a combination of enumerated features. Title 18 U.S.C. section 922(v)(1) prohibits manufacture, transfer, and possession of semiautomatic assault weapons; however, section 922(v)(2) provides that any semiautomatic assault weapon that was lawfully possessed under Federal law on September 13, 1994, is excluded from the prohibition.

A frame or receiver of a semiautomatic assault weapon, meets the definition of a "firearm" in 18 U.S.C. section 921(a)(3); however, a firearm frame or receiver alone, without the additional qualifying features, does not meet the definition of a "semiautomatic assault weapon" in section 921(a)(30). Therefore, a firearm frame or receiver does not meet the exemption in section 922(v)(2).

We have also determined that a semiautomatic assault weapon in knockdown (unassembled) condition consisting of a receiver and all parts needed to assemble a complete semiautomatic assault weapon 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.

You describe an AR15 type rifle that met the definition of a semiautomatic assault weapon and was lawfully possessed on September 13, 1994. At some subsequent time the rifle was temporarily reassembled in a configuration such that it no longer had the qualifying features of a semiautomatic assault weapon. You asked if the original components could then be lawfully reinstalled on the rifle.

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.

Your second question concerns a semiautomatic assault weapon that also meets the exemption in section 922(v)(2). However, this firearm was disassembled and the receiver, without other components, was sold. 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).

If you are interested in determining the status of a particular receiver or semiautomatic assault weapon, you should contact the manufacturer or importer and ask about the date that it was manufactured and the configuration at the time of sale. It may also be necessary to contact subsequent dealers and owners who possessed the firearm.

We regret the delay in responding to your inquiry. If you have further questions concerning this matter, please contact us.


Sincerely yours,

Curtis H.A. Bartlett
Chief, Firearms Technology Branch

The ATF takes the stance that in their opinion such a lower could not be reassembled into a SAW without violating 922(v).  This is not supported by Fed law, regulation, or caselaw.  The meat of the letter is this:

"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)."

Note there is no explanation on why the assembly of this lower would violate 922(v).  That is because it would not, remember this lower came off a grandfathered pre-ban AR-15 type rifle.  The grandfather status has not changed simply because the rifle at some point after 09-13-94 the lower was no longer definable as a SAW.  This is because neither Fed law, regulation, nor caselaw says so.  In order for something to be illegal it needs to be spelled out in law or regulation, ATF letters don't count, it is just that simple.

As a side not, I found no other mistakes in the letter, that one sentence, which just so happens to be the meat of the letter, the one part of the letter Bartlett should have gotten correctly.  The last paragraph does contain a goofy suggestion though.

You can't not always point to law or regulation to show something legal.  For instance, can I fly a kite on Sundays?  Well gee, I think so, but can I point to a law or regulation that PROVES this, why no I can't but I will fly a kite on Sunday with no fear of prosecution. Having said this I will now try to prove an act legal, as moronic an activity as that is, considering someone should make the argument of the converse.

Let us go back to our saving grace, that being the exception found in 922(v)(2), "Paragraph (1) shall not apply to the possession or transfer of any semiautomatic assault weapon otherwise lawfully possessed under Federal law on the date of the enactment of this subsection".  Note that it is only one sentence and is quite understandable.  It says that the SAW must be lawfully possessed on 09-13-94.  In order for Bartlett to be correct it would need to be worded different, for example;

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, and in order to maintain this status the semiautomatic assault weapon must remain a semiautomatic assault weapon for every day thereafter forever and forever amen.

Well guess what, it don't say that, and so Bartlett is wrong.

This legal opinion is provide by me free of charge, but do feel free to make donations to my Paypal account, thank you and have a nice day.

Yup, their letter is pretty much how I saw it.  Enforcement would be impossible if it were illegal to reassemble the AW.

I'm looking at paragraph 2 again....



What it says is that it is legal to possess or transfer a "semiautomatic assault weapon" today if it was lawfully possessed by someone on 9-13-94.

Unfortunately, what it looks like (i think) is this provision for legally possessing or transferring only applies to a "semiautomatic assault weapon" (which is by definition a specifically named SAW like a Colt AR-15 or a semiautomatic rifle that has an ability to accept a detachable magazine and has at least 2 [evil features]) and not to the receiver of a semiautomatic assault weapon, unless that receiver is marked Colt AR-15 in some way.

Yes, that is correct.  Both Bartlett and myself have already pointed that out, and is not in contention.  The converse would be that a receiver or lower in this case is a SAW, and that would be bad, real bad.

You state,

"Note there is no explanation on why the assembly of this lower would violate 922(v). That is because it would not, remember this lower came off a grandfathered pre-ban AR-15 type rifle. The
      grandfather status has not changed simply because the rifle at some point after 09-13-94 the lower was no longer definable as a SAW. This is because neither Fed law, regulation, nor caselaw says so.
      In order for something to be illegal it needs to be spelled out in law or regulation, ATF letters don't count, it is just that simple."


I'm not sure that this is entirely correct.  Many agencies have the legal and even Constitutional authority to interpret definitions, meanings, and regulations pretty much as they see fit.     Just as the specific characteristics of every firearm are not specifically stated in the US Code or CFR, the precise details that make one firearm legal and another one NOT legal may not be specifically mentioned, either.  

Part of the BATF's job is to define what is legal and what is not, using the USC and CFR as the framework for these decisions.   This is legal, but subject to judicial oversight when there is question as to whether or not a BATF ruling violates the letter of the law.


I believe that if the BATF were to explain this questionable definition to you that you speak of, they would reply that the status of the lower receiver is dependent upon its configuration at the time of transfer from one owner to the next.  If the new owner puts pre-ban features on the old lower that USED to have pre-ban features, but was not so equipped when he purchased it from a previous owner, then he IS assembling an assault weapon.   This is based on his being the new owner.

Would a challenge to this particular secton of the ruling stand up in court?

I don't know.  But I would like to think that it would in a court of HONEST people.


I really hope you're right and Bartlett is wrong.  But I'm not sure.


CJ

Ok....let me get this straight.

I could buy a stripped Colt AR-15 SP-1 lower tomorrow. Manufactured prior to 1994. The stripped receiver alone woudl be a SAW since it is marked Colt AR-15? So, it is true that only Colt AR-15 lowers (and others specifically names in the ban) can be sold stripped and still carry their Pre-Ban status?

“I'm not sure that this is entirely correct. Many agencies have the legal and even Constitutional authority to interpret definitions, meanings, and regulations pretty much as they see fit. Just as the specific characteristics of every firearm are not specifically stated in the US Code or CFR, the precise details that make one firearm legal and another one NOT legal may not be specifically mentioned, either.

Part of the BATF's job is to define what is legal and what is not, using the USC and CFR as the framework for these decisions. This is legal, but subject to judicial oversight when there is question as to whether or not a BATF ruling violates the letter of the law.”

Well we are talking about a letter, and a letter ain’t the law, no way no how.

“they would reply that the status of the lower receiver is dependent upon its configuration at the time of transfer from one owner to the next.”

Say they did, don’t change the fact that neither law, regulation or caselaw says that.  If it did, would not be that tough to find it, and Bartlett would have referenced it.

“If the new owner puts pre-ban features on the old lower that USED to have pre-ban features, but was not so equipped when he purchased it from a previous owner, then he IS assembling an assault weapon.”

That is correct, but not illegal, there is an exception found in 922(v)(2), please refer to my first five posts in this thread.

“Would a challenge to this particular section of the ruling stand up in court?”

It is not a ruling, it is a letter.

“I could buy a stripped Colt AR-15 SP-1 lower tomorrow. Manufactured prior to 1994. The stripped receiver alone woudl be a SAW since it is marked Colt AR-15?”

There are two parts to the definition of a SAW, the first parts is a list of firearms.  On the list is the AR-15.  The ATF has stated in a letter that a firearm marked AR-15 is a SAW based on that marking alone.  In all actuality neither side of this issue wants this list of SAWs to go to court, it could be real damaging to either party.  I do know of one case that it was used, and it did not come out in the Government’s favor.

“So, it is true that only Colt AR-15 lowers (and others specifically names in the ban) can be sold stripped and still carry their Pre-Ban status?””

That is incorrect, please refer to my first five posts in this thread.

Sorry, friend, you were kind enough to bid me a fond welcome (for which, much thanks) and now I have to disagree with you.

I believe the law says all ar15s (and per se SAWS), stripped or complete are grandfathered.

Note the definition of SAW in (A)--any of the [b]firearms[/b]...known as...(iv) ar15 (among others). 921(a) (3) defines "firearm" as [(3) (b)] "the frame or receiver of any such weapon".  This is what defines (partly, at least) the class of grandfathered weapons.

To me, this says that ar15s, and all per se weapons in (A), as long as they contain at least the receivers of same, are grandfathered.  

Ok, I'm looking at paragraph 2, once more...





If you assembled (past tense) a SAW from a stripped pre-ban (non-Colt AR15) receiver that was once part of grandfathered SAW, then it is legal to possess your new creation because, in accordance with Paragraph 2, it was a SAW that was lawfully possessed by someone on 9-13-94.

Hence, possession of such a SAW is legal.

what do u guys think?

Methos, BY GEORGE YOU GOT IT!  Not that tough, you just read what it says.

jagcap

Good to see you again.

Hey, you know you are treading dangerous ground here, I already addressed it with this comment:

"If the ATF maintained that a mere AR-15 type receiver (just an example, this is the AR board) was a SAW then this would prohibit current manufacture of receivers, that would be real bad. As a result you will not see me defending the idea that a stripped lower or lower assembly meets the definition of a SAW."

Think about that for a minute, and please come back.

Yeah, [u]ultimate[/u] [b]possession[/b] of such a SAW i think is legal, but is the act of [b]manufacturing[/b] the SAW illegal in violation of paragraph 1 since it was trasferred to you as a stripped receiver and not a complete "Semiautomatic Assault Weapon" as required by paragraph 2 ??

awww forget it... im still all confused [:\]

No, that is a very good point, was waiting for that one.  The exception in 922(v)(2) only pertains to possession and transfer, not manufacture.  The example addressed in Bartlett's letter does not involve manufacture, it involves reassembly.

I recommend caution.  You are making interpretations which are at variance with the BATF's interpretations, and they are authorized by Congress to make these interpretations and you are not.

Like it or not, the BATF IS in the business of establishing legally acceptable definitions of matters within their domain, which of course means matters regarding all guns.

In a court of law, the BATF's rulings and definitions will carry more weight than yours will since it is their assigned task to fill in the details in the framework created by Congress.  Even if your interpretation of the written letter of the law looks good, if it's at variance with the BATF's interpretation and rulemaking,  it will be VERY difficult to persuade a court that the BATF is wrong.  And if you can't do that, then the BATF ruling stands as law whether you agree with it or not.


The BATF would take the position that a person who assembles pre-ban components to a receiver tha he has never owned before and was not procured already in pre-ban configuration is in fact making an assault weapon.   They will state that the pre-existence of this receiver, and the fact that it had been previously configured as an assault weapon, would be no defense against the charge against its new owner of creating an assault weapon beginning with a receiver that was NOT configured so when it was transferred to him.


I'm just trying to prepare you for what the opposition will say.  They WILL use this argument, if you take the matter to court, and they will probably WIN against you.

I agree with what you're trying to do, but unfortunately, some of it is wishful thinking based on the erroneous assumption that the BATF can't establish the detailed definitions to be applied to firearms law.  They CAN, and it's LEGAL.


Wishful thinking won't solve this problem.  
You'll have to be creative and I would recommend
picking up an annotated copy of title 18, and spend MOST of your time reading the notes following S. 922.   Those notes may provide some useful insights that the text of the law itself does not.

CJ

You do understand that this ATF opinion is a letter, not a law, regulation, ruling, or caselaw right?  Since when are charges brought up based on violation of letters written by some dude named Bartlett?

Knock, knock, ATF here, we are charging you with violating Bartlett's letter, boy you in deap trouple LOL!

I guess most of us agree that a non-Colt AR-15 stripped receiver alone fails to meet the definition of a "semiautomatic assault weapon".

However, I still think according to the law, a stripped Colt AR-15 receiver is a "semiautomatic assault weapon" and if it was lawfully owned (either as a complete rifle or bare receiver) by someone at the time of the AW ban, it can legally be assembled into a functional weapon.

This is what I understand:

1.  First, a stripped Colt AR-15 receiver is a firearm, in accordance with Sec. 921(a)(3).


2.  Since a stripped Colt AR-15 receiver [u]is[/u] a [b]firearm[/b] and is one of the [b]firearms[/b] listed in Sec.921 (A), the stripped Colt AR-15 receiver is therefore a "semiautomatic assault weapon" in accordance with Sec.921(A) regardless of whether or not it is a semiautomatic rifle, pistol or shotgun having any of the "qualifying features"--as Bartlett would say-- listed in Sec.921(B), (C) or (D).


3. Since a Colt AR-15 stripped receiver is a firearm which just so happens to be a "semiautomatic assault weapon" under 921(a)(30)(A), as long as someone had lawfully owned such a SAW on 9-13-94, that stripped receiver meets both conditions of 922(v)(2), is excluded from prohibition, and can legally be possessed or transferred as an exempted firearm (whether as a functional weapon or receiver as defined in 921(a)(3)).



4. On November 16, 2001, Curtis H.A. Bartlett of the ATF writes:


It is true, a semiautomatic rifle, pistol or shotgun not listed in 921(a)(30)(A), unlike a Colt AR-15, must meet the test of "qualifying features" set forth in 921(a)(30)(B), (C) or (D).

However, a Colt AR-15 is already defined as a SAW under 921(a)(30)(A), and the test for "qualifying features" under 921(a)(30)(B), (C) or (D) need not apply.

Hence, Bartlett is in error when making the blanket statement that receivers alone without qualifying features are not SAWs under 921(a)(30) in general when in fact 921(a)(30)(A) lists a number of [b]firearms[/b] (which includes receivers by definition) determined to be SAWs by name, such as a Colt AR-15.

Perhaps Bartlett was only referring to non-Colt AR-15 stripped receivers when he made that statement.  He is not clear on this.

5.  Finally, since a stripped Colt AR-15 receiver is firearm which already is a manufactured Semiautomatic Assault Weapon under 921(a)(30)(A), assembling such a receiver into a functional weapon is not manufacturing a SAW, and one is therefore not prohibited from doing so -- provided it had lawfully been possessed by someone at the time of the ban.

What am I missing?

BTW, Troy is right... the November elections is important.

Troy

"The position they are taking IS reasonable based on the TEXT of the law, despite the fact that it is pretty clearly against the SPIRIT of the law.......I'm just pointing out that BATF's ruling IS consistant with the law."

Hey Troy, the TEXT of the law says nothing about the exception in 922(v)(2) other then that the SAW be legally possessed on 09-13-94.  No matter what you do to a SAW after 09-13-94 it will not change the fact of wether or not it legally possessed on 09-13-94.  The past is done, we can not change history.

Methos

Alright, despite repeated and explicit warning about the first section, "the list" as being a forbidden fruit, the playing with fire continuous.  I have taken the liberty to make a few changes on your last post.

However, I still think according to the law, a stripped AR-15 type receiver is a "semiautomatic assault weapon" and if it was not lawfully owned (either as a complete rifle or bare receiver) by someone at the time of the AW ban, it is contraband.

This is what I understand:

1. First, a stripped AR-15 type receiver is a firearm, in accordance with Sec. 921(a)(3).


TITLE 18 , PART I , CHAPTER 44 , Sec. 921.
(a)
(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;
*****




2. Since a stripped AR-15 type receiver is a firearm and is one of the firearms listed in Sec.921 (A), the stripped AR-15 type receiver is therefore a "semiautomatic assault weapon" in accordance with Sec.921(A) regardless of whether or not it is a semiautomatic rifle, pistol or shotgun having any of the "qualifying features"--as Bartlett would say-- listed in Sec.921(B), (C) or (D).


TITLE 18 , PART I , CHAPTER 44 , Sec. 921.
(a)
(30)
The term ''semiautomatic assault weapon'' means -

(A) any of the firearms [emphasis added], or copies or duplicates of the firearms in any caliber, known as -

*****
(iv) Colt AR-15
*****

(B) a semiautomatic rifle that has an ability to accept a detachable magazine and has at least 2 of - [evil features]

(C) a semiautomatic pistol that has an ability to accept a detachable magazine and has at least 2 of - [evil features]

(D) a semiautomatic shotgun that has at least 2 of - [evil features]




3. Since a AR-15 type stripped receiver is a firearm and a copies or duplicates of "semiautomatic assault weapon" under 921(a)(30)(A), if someone had not lawfully owned such a SAW on 9-13-94, that stripped receiver does not meet both conditions of 922(v)(2), is prohibited.



922(v)(2)
Paragraph (1) shall not apply to the possession or transfer of any semiautomatic assault weapon otherwise lawfully possessed under Federal law on the date of the enactment of this subsection.[emphasis added]




4. On November 16, 2001, Curtis H.A. Bartlett of the ATF writes:


A frame or receiver of a semiautomatic assault weapon, meets the definition of a "firearm" in 18 U.S.C. section 921(a)(3); however, a firearm frame or receiver alone, without the additional qualifying features, does not meet the definition of a "semiautomatic assault weapon" in section 921(a)(30). Therefore, a firearm frame or receiver does not meet the exemption in section 922(v)(2).




It is true, a semiautomatic rifle, pistol or shotgun not listed in 921(a)(30)(A), unlike a Colt AR-15 or copies or duplicates, must meet the test of "qualifying features" set forth in 921(a)(30)(B), (C) or (D).

However, a Colt AR-15 copies or duplicates is already defined as a SAW under 921(a)(30)(A), and the test for "qualifying features" under 921(a)(30)(B), (C) or (D) need not apply.

Hence, Bartlett is in error when making the blanket statement that receivers alone without qualifying features are not SAWs under 921(a)(30) in general when in fact 921(a)(30)(A) lists a number of firearms (which includes receivers by definition) determined to be SAWs by name, such as a Colt AR-15 copies or duplicates.  Therefore all those that have manufactured, possessed, and transferred Colt AR-15 copies or duplicates that are not excluded under 922(v)(2) have committed a Federal felony and must be rounded up.  The ATF needs to obtain warrants for such felons as ArmaLite, Bushmaster, Colt's, Oly, Rock River, Les Bauer, JP, The Edge, Fulton Armory, etc, such operations will be shut down, Colt AR-15 copies or duplicates sold after 09-13-94 will be traced from their manufacturers books, those that possessed and transferred such SAWs will be arrested and charged with violations of 922(v).

The above follows the letter of the law, and is in the SPIRIT of the law, just ask Fienstien.  So again, I suggest that we never, never, bring up that list again, and thank you in advanced for not doing so.

I feel like I'm in the "In Laws"--we'll call it "the List", but we'll both know what we're talking about.

Circumspection in this area is of course prudent--"don't give them any ideas" is good policy.

But, I think this needs to be said about "the List".  I think the fiction that we (not enthusiasts, but the country) have all lived under for 8 years is that that model ##, the one with the 2 letters followed by the 2 numbers, ceased production in 1994 and that  now a completely different model is (models, actually are) in production.  The words "copy" and "duplicate" in the statute, although undefined, were understood, even then, to be damn close to the original.  Manufacturers were thus free to, and did indeed quickly, make minor changes, but enough to keep the result from being a "copy" or "duplicate" of the original (except to whiny gun-grabbers).
BATF has to know what's out there and how close it is to the original; nevertheless, they aren't legally "copies" or duplicates" so they are legal to manufacture.  

So I still believe we're ok, as long as no-one produces a "copy" or "duplicate" (meaning damn close to the original) of you-know-what.

But, to be on the safe side, I will no longer mention "the list".

Anyway, I've got something else troubling me, the whole idea of the BATF letter and its effect, which I'll post on later.  

These are all interpretations. What it comes down to is how good you feel in your interpretation.

Case law will be the definition.  What are your chances in being charged? Convicted? How much of a defense can you afford? I think these questions should be pondered for us as citizens. The rest is interesting but has gotten into a chicken & egg discussion.

cmjohnson:

Hey guy, I short changed you yesterday, most of your comments were a bit odd in that they gave this letter a legal status similar to law, regulation, ruling or caselaw, so I dismissed your post out of hand.  But the following paragraph deserves further comment:

"The BATF would take the position that a person who assembles pre-ban components to a receiver tha he has never owned before and was not procured already in pre-ban configuration is in fact making an assault weapon.  They will state that the pre-existence of this receiver, and the fact that it had been previously configured as an assault weapon, would be no defense against the charge against its new owner of creating an assault weapon beginning with a receiver that was NOT configured so when it was transferred to him."

I take it that this SAW in question was legally possessed on 09-13-94, safe assumption considering the topic of this thread.  The defense here would be 922(v)(2):

Paragraph (1) shall not apply to the possession or transfer of any semiautomatic assault weapon otherwise lawfully possessed under Federal law on the date of the enactment of this subsection

Note it has no requirement regarding what configuration it is in during transfers conducted after 09-13-94. There are also no requirements that in the case of a AR that it be oiled only with CLP, that USGI mags are to only be used, or that the receivers are to be kept waxed, or the butt stock rubbed down in oil periodically to eliminate that styro look, or in the case of a AK that it be constructed of certain parts that are not imported.  The only requirement is that it was lawfully possessed on 09-13-94.  Any other requirements are fantasy, and as Steve-in-VA has noted, though I did disagree of course, is that I have quite the imagination, much better then Bartlett's I might add, and could come up with many more silly exceptions, to 922(v)(2).

jagcap:

I feel like I'm in the "In Laws"--we'll call it "the List", but we'll both know what we're talking about.

You talking about the movie about the dentist who's daughter is getting married?  If so I might just have to tell my story about large flies (don't know how to spell that) later on.  Well, I don't have such a story, but maybe I could embellish a bit.

"Circumspection in this area is of course prudent--"don't give them any ideas" is good policy."

The ATF has purposely not enforced "the list" (other then to simply restrict markings on firearms, and threaten to restrict firearms with certain markings).  I really didn't think they would just cause we pointed it out, but it did add some fun to this thread, while giving some something to think on.  Troy got it right off, but heck he already knew it.  I can think of two reasons the ATF does not enforce the list, one being the cost of attempting to shut down an industry, and second such lists have not faired well when brought to court.  So the ATF has chosen to by in large to ignore it, and I will follow their lead on that one.

"BATF has to know what's out there and how close it is to the original; nevertheless, they aren't legally "copies" or duplicates" so they are legal to manufacture."

An attempt could have been made to establish the exact opposite on 09-13-94, and indeed I thought the ATF would because that is how I read the bill before it became law.

"Anyway, I've got something else troubling me, the whole idea of the BATF letter and its effect, which I'll post on later."

Oh goodie, great anticipation...

BKinzey

"What are your chances in being charged? Convicted?"

They are similar to the odds that you will be killed by an elephant defecating on your person.

"How much of a defense can you afford? I think these questions should be pondered for us as citizens. The rest is interesting but has gotten into a chicken & egg discussion."

I agree, and have pointed that out in two of the three threads I posted links to.  So quite the irony when I finally decided (some nine months later) to get off that tangent and address the letter specifically Dave_G, Circuits, Steve-in-VA, and Shaggy are suddenly without comment, and now Troy is taking the angle I held that there others things more important then debating this LOL.

Funny that they have been arguing the specifics of this letter since last December, and have not gotten around to discussing the blatantly obvious fundamental flaw in Bartlett's letter, that is how this:

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

Can be construed to mean this:

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, and in order to maintain this status the semiautomatic assault weapon must remain a semiautomatic assault weapon for every day thereafter forever and forever amen.

"In one section, you agree that a non-named SAW is only a SAW when it is complete, meaning, able to fire semi-automatically AND possessing enough evil features. If this was NOT true, then receivers themselves would be SAWs, and no one could be making new AR15s, right?"

Yeah that is correct, and not in contention.

"Note that it doesn't say "transfer of any FIREARM". It says "transfer of any SEMIAUTOMATIC ASSAULT WEAPON."

Correct again sir.

"Can a firearm be a SAW if it is not complete enough to fire semiautomatically? "

Well debatable, knock down kits do (in the mind of the ATF) but for the heck of I will go along here.

"Well, according to what we agree that the law states (see my first paragraph), then, NO. "

Sure, will go with that.

"So, the exemption listed in the law applies only to either named SAWs (in which a stripped receiver IS still a SAW), or to non-named COMPLETE SEMI-AUTOS IN SAW CONFIGURATION. Right?"

Well the exemption is for SAWs not widgets.  Widgets are not covered in 922(v)(1) so no need to exempt them in 922(v)(2), so they put SAWs in there, makes a nice fit I think.

"Anyway, that's how BATF made their determination. Given that it is based on a strict interpretation of the text of the law, they have a solid position that would be pretty easily defended in court."

What, huh, you had a point somewhere, heck I already said all that.

"If you or anyone can refute THIS, I'd like to know how. Without, of course, banning ALL ARs in the process.

-Troy"

Refute what?  Did you forget something?

"P.S., the "copies and clones" portion of the law was overturned in court as being "vague and unclear", IIRC."

Hey, I missed that one, can you get me up to speed and give me a link or something, thanks Troy.

This issue of the status of BATF letters has bugged me for a while, I think now its time to launch.

(By the way, Ek, that was the reference I was making, do tell if you've seen Jose Grecos de Muertos too!)

1. I was a prosecutor for almost 20 years.  When I wanted to know what the law was, I didn't call a cop; I spoke to a fellow prosecutor, maybe, once in a long while, to the counsel for a PD, but not a cop.  No offense to my brothers of the shield (did time there, too), but the demands of the job preclude real in-depth knowledge of the law.  Anybody know who the author of the ATF letter is?  He's a tech guy; I'm sure he knows his tech stuff, but what qualifies him to give legal opinions?  Most states (DC, I think, too) preclude giving legal advice without a license; does his familiarity with the law give us any real confidence that he understands it?  The letter sure doesn't!
2. Letter opinions by federal (and state) agencies is not all that uncommon; we all know the big one--IRS--and they have a complete system for issuing letter rulings to taxpayers on issues of tax law (yes, even on firearms tax law!).  But, they all--IRS especially--come from the counsel's office, and state the policy of the bureau at the very highest level.  What's to say that that letter, and others that we have seen, have had any lawyerly input (on legal issues), and represent any particular level of policy decision-making.  Nothing.
3.No-one should confuse such letters (unlike, say revenue rulings by IRS) as having any real solid value--there is simply no way to tell, for example, whether it is just the opinion du jour (de jure?), of one man or several, or what it really means.
4.That much being said, like asking any law enforcement office their opinion on a subject, it may portend their opinion about that subject.  Just, I feel very strongly, take it with a prodigious grain of salt.      

Okay Troy, you are doing the same thing as Bartlett, somehow jumping from "A",  that is a legal SAW, to "B", that is a illegal SAW with nothing solid in between other then that a lower and upper were separated at one point.  I think I know what it is, so how about if I tell a little story and ya tell me what ya think?

Billy Bob buys himself a NIB Colt's Sporter Match Target 6551 on 09-12-94.  He is not a felon or anything of the sort so he legally possess this SAW on 09-13-94.  Billy Bob sells the upper off for beer money sometime in 1995 and puts the lower in the back of his closet.  So sure it ain't a SAW no more, it don't fit the definition of one at this point.  Anywho, he decides he don't want it no more and posts it for sale on Buddy's board and sells it to Boe Diddly on 09-10-02 for $950.  Boe Diddly bought it for his M4gery project, he already had the Colt's 6920 upper and 4-position stock on hand.  He picks it up from his dealer on 09-20-02 and takes it home.  So you say, well it ain't no SAW, so can't be grandfathered.  Well hmm, you say it ain't no SAW huh, well that is easy enough to fix (can see what is coming next?) so he screws the old buttstock/receiver extension off and screws the 4-position stock on and snaps the 6920 upper on, SHAZAM, a SAW, was not that tough after all.  So you say, well he can't do that, well why not?  At this point it is a SAW right, and it was legally possessed on 09-13-94 right, well yes, gee come to think of it, it was huh?

What BATF is saying is that Bo Diddly just created an illegal post-ban semi-auto assault weapon."

That is Bartlett's position.

" He didn't buy a SAW, he bought a lower receiver that didn't meet the definition of a SAW."

Again, correct.

Configuring that receiver into SAW configuration was illegal...."

Here is were the problem is.  Fact is Boe Diddly's SAW is grandfathered, it fully conforms with the exception in 922(v)(2), that is it is a SAW and was legally possessed on 09-13-94.  How does the fact that he bought it as a lower change this, well it don't.  He could defile it by shooting a pig on the Sabbath but it won't change that fact that it was a SAW and legally possessed on 09-13-94.  The only way this rifle could not meet the exception in 922(v)(2) would be if he bought a time machine, went back to 09-12-94 and stole it from Joe Bob, then it would have been illegally possessed on 09-13-94 and would fall out of the exception of 922(v)(2), but gee Boe Diddly don't have a time machine.

jagcap

"(By the way, Ek, that was the reference I was making, do tell if you've seen Jose Grecos de Muertos too!)"

No haven't seen that one, don't watch many movies, just one heck of a coincidence we both seen the In-Laws, one of my favorites.  I like the line THERE ARE FLAMES ON MY CAR.

Busted a gut reading your post, like the bit about not taking legal advice from cops.  Sure Bartlett is a techie, we should cut him some slack though, only been on the job for a few months when he wrote that letter.  Have read a court transcript of testimony of a ATF techie that was quite impressive, some of those guys are very knowledgeable about small arms.

Just getting a bit curious, is anyone catching on to this?

Ah ha, I think I follow you now Troy, your stance is that this letter is a ruling, as in if his letter said the opposite it would be legal.  In other words the law means what a letter from the Tech Branch says?  

By George that is it Troy, here are some quotes:

"You keep quoting the law, but you keep failing to follow the definitions of the law when parsing out what the law says."

"Configuring that receiver into SAW configuration was illegal (per BATF's letter ruling/opinion/whatever of the law), just like it would be if the reciever had been manufactured on 9/14/1994."

"take the text of the law and explain how it would be applied to a particular situation. They've done that. None of us LIKE the ruling, but it seems that some folks are trying to wish it away by ignoring evidence that is presented over and over. So, whatever."

And these from the older threads:

"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."

"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."

"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."

Well we can fix that Troy, got to get some sleep though.....

Hmm, no one wants to address the authority of an ATF Tech Branch letter in court?  So jagcap and I are carrying the work load here?  What the heck, I will do it, give me a bit of time here.

The November 1999 edition of Small Arms Review has a little ditty James Bardwell wrote on ATF letters and thier application.  It is a bit long winded, but for the greater good I will type it out and post it here.  Well, I might try and scan it first.  Oh yeah, and it is good stuff, you guys will like....

Here it is:

[IMG]http://album.gunsnet.net/data/ekie/86_p4149.jpg[/IMG]

This picture was posted with the gunsnet pic server, my understanding is that some of you guys will not be able to view it, I will send it to those that request it, if you make such a request to me via e-mail.

BTW, James has let my posts some of his material before, guess I better ask again huh?

I quote James Bardwell:

"..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."

What is important here is what the law says, not Bartlett, and the law does not contain the exclusion to 922(v)(2) that Bartlett made up, nor are there any exclusions to 922(v)(2), or you could say 922(v)(2) says what it means, add to it if you want but that don't make your additional verbiage law no matter who you work for or how greatly gifted your imagination may be (exculuding Congress with the President of course).

The ATF could clarify 922(v)(2) through regulation or ruling (not the same as a letter from the Tech Branch), but it would have to be in keeping with the law as written by Congress and signed into law by the President or it would risk being struck down by a court.

Hey Steve, glad to hear you are enjoying the thread, I thought it was fun.

I'm gonna keep this rolling until you convince me, or I convince you.  [:)]



We are in agreement that what Mr. Diddly bought was not a SAW, but was in fact "just" a registered firearm, and did indeed lose it's preban status when it was transfer as a lower? ...I think we're OK up to here.

Now here is where I disagree with your quote above....

You say:  "Boe Diddly's SAW is grandfathered, it fully conforms with the exception in 922(v)(2), that is it is a SAW and was legally possessed on 09-13-94."

I don't believe the SAW he posseses is covered by 922(v)(2) because is was NOT "lawfully possessed under Federal law on the date of the enactment of this subsection."  The SAW he has was created in his garage by slapping a preban upper on a postban receiver ...it was not in anyone's possession on or before 9/14/94.

If I pick up my new Bushy tonight from the gun store, and slap a preban upper on it ...I'm a felon ...and I think Mr. Diddly is too.

"We are in agreement that what Mr. Diddly bought was not a SAW, but was in fact "just" a registered firearm, and did indeed lose it's preban status when it was transfer as a lower? ...I think we're OK up to here."

Well it ain't a semiautomatic assault weapon if that is what you mean.

"You say: "Boe Diddly's SAW is grandfathered, it fully conforms with the exception in 922(v)(2), that is it is a SAW and was legally possessed on 09-13-94."

"I don't believe the SAW he posseses is covered by 922(v)(2) because is was NOT "lawfully possessed under Federal law on the date of the enactment of this subsection."

It is not, how ya figure, did Billy Bob commit some crime I was not aware of?  I thought he was in legal possession of the rifle on 09-13-94.  Not going to be able to use my story if you change the characters.  I mean sure, he drinks a little beer but that don't mean he could not possess that rifle on 09-3-94.  Think you are going to hurt his feelings.

"The SAW he has was created in his garage by slapping a preban upper on a postban receiver ...it was not in anyone's possession on or before 9/14/94."

Sure it was, Billy Bob owned it, heck he might even have the receipt.  The ATF could trace it through the 4473 anywho.  Or did Boe Diddly change the serial number?  Well heck that would be a violation of 18 U.S.C. section 922(k).

"If I pick up my new Bushy tonight from the gun store, and slap a preban upper on it ...I'm a felon"

Well sure, no one legally owned that Bushy on 09-13-94, so would not fall into the exception of 922(v)(2).

Seems to me that you are saying you can do something to a firearm to make into new firearm thus erasing it's previous history.  I am not familiar with that concept, other then to destroy the rifle, and then restore it into a new firearm.  You know, torch cut the receiver in three places and then reweld it.  

And I thought I had a decent understanding of this issue, now I'm more confused than ever and its giving me a headache!

I'm going to log out, take two asprin and a cup of coffee... When this thread calms down and there hasn't been any new posts I will then print it out and re-read it 5 or a dozen times...

If you want to have a real debate, I'm happy to oblige.  If you just want to be silly, I'll let you do that on your own.

I changed nothing about your story.  A SAW must consist of an upper and a lower.  Boe didn't buy a SAW, he bought a lower/receiver.  A receiver that's classification changed to postban upon transfer.  He then assembled his SAW, using the postban receiver, and a preban upper.

I never said he turned one firearm into another.  The registered firearm, the postban receiver, stayed the same.  The SAW is what changed.

And if they (meaning the BATF, should they ever have a reason) take your suggestion and trace the 44xx forms, they'll see that Boe only purchased the receiver ...the [u]postban[/u] receiver.

So in review:

1.  A SAW requires an upper and lower.  Yes/No?

2.  Boe bought just a lower/receiver.  Yes/No?

3.  The receiver in question changed to a postban when transferred to Boe.  Yes/No?

4.  The SAW Boe has, was assembled by putting a preban upper on said postban receiver.  Yes/No?

Is that not against the law?  Yes/No?

.

ARFrank:

I agree with you 100%. A receiver cannot be a SAW alone, unless Colt AR-15, Etc. In order for the receiver to keep it's pre-ban status, it must be sold as a complete rifle in pre-ban configuration.

"If you want to have a real debate, I'm happy to oblige. If you just want to be silly, I'll let you do that on your own.  I changed nothing about your story."

Yeah you did, you say that the SAW was not legally owned on 09-13-94, so what happened to Billy Bob, last I knew he legally owned said SAW on 09-13-94.  Now who is silly?

Think I got you narrowed down to this:

"A receiver that's classification changed to postban upon transfer."

What is your legal standing here?  The law don't say that.  You guys are making this stuff up as you go along.  There is not even a legal definition of "postban".

"He then assembled his SAW, using the postban receiver, and a preban upper."

Again, point me to the law that says SAW can go from grandfathered under 18 USC 922(v)(2) to not being grandfathered.  What the heck is a "postban" receiver, find that one in USC.  Pure nonsense.

"The registered firearm, the postban receiver, stayed the same. The SAW is what changed."

Same stuff again, then now this SAW changed thing, where do I find this SAW change in USC?

"And if they (meaning the BATF, should they ever have a reason) take your suggestion and trace the 44xx forms, they'll see that Boe only purchased the receiver ...the postban receiver."

No such thing.

1. A SAW requires an upper and lower. Yes/No?

In this case yes, being a AR and all.

2. Boe bought just a lower/receiver. Yes/No?

You bet he did, kinda of a high price I thought though.

3. The receiver in question changed to a postban when transferred to Boe. Yes/No?

Not hardly, no such thing found in USC.  Only in fairy tails.

4. The SAW Boe has, was assembled by putting a preban upper on said postban receiver. Yes/No?

No, there is a exception found in USC section 922(v)(2) it reads:

"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"

Well it meets that test, being that it was legally owned on 09-13-94.  There are no other standards, like it can never be a "postban" during subsequent transfers, or what ever else you guys would like to make up, just this one, that it was legally owned on 09-13-94, AND NO MORE!  If you would like to add more to it that includes "postban" verbage and transfer conditions that is fine, but if you try and pass that off as law I will call you on it, as in post it, lets see your cards man.

Is that not against the law? Yes/No?

What law?  The one that says a pre-ban is now a "postban" if transferred on the Sabbath, or which one, huh, what?????

Gee NAM, could you point me out where in USC does it says "In order for the receiver to keep it's pre-ban status, it must be sold as a complete rifle in pre-ban configuration", just can't seem to find it.