Damn Bradys!

Kyle

So, if I remove the upper from the lower to clean it, I can't put it back together again?  Seems like the rifle would no longer have the evil features if it didn't have an upper on it. Hmmmmmmm?

LOL!

Just don't tell the BATF when you field-strip your rifle.

Let's see...The BATF says it's OK to "remanufacture" a pre-ban receiver by stamping the old serial number on a new receiver with the appropriate paperwork and sending the old, destroyed receiver to them.  Then you assemble the old parts to the new receiver.  Now that's OK with them.

That opinion is also in conflict with their policy of "Once a machinegun, always a machinegun."  Shouldn't it be, "Once an AW, always an AW."

Stokes,

Send them a letter.  You should get the answer you want from the boss there.

STOP TALKING TO THE ATF FOOLS ON THE PHONE!!!!!
You will only get morons that don't even know what a gun is.
The ONLY way to get a real answer is to write a letter.  This will not only get you the CORRECT answer but something that is submissible in court!!!


BISHOP

Troy, sense when do we have to prove shit to the ATF??? The burden of proof is on THEM, not us. When buying a "preban", that means it is already at least 7 years old. Can you really tell me what happened to that preban after if left the factory stripped??? No. Can the ATF?? No. Can anyone else but the person who owned it on Sept 9, 1994? No. All I know is that when I buy stripped lowers I am buying them to BUILD into something, not hang on my wall to show to friends. "Look, that's my AR-15. I know it's just a stripped lower, but who needs the rest of it anyway." Fact is a lower which was made before the ban was more than likely assembled into a complete rifle before the ban. Fact is unless you DID buy an SP1 in 1985 and saved your receipt (if you even got one, ever heard of gunshows) then it is nearly imposible to prove what configuration one particular rifle was in 7,8,9,10 or more years ago.

Bottom line is I don't have to prove shit to anybody. They can clearly see the preban serial number. If they have anything up their ass beyond that then they will still have to consider me innocent until proven guilty. And I would REALLY love it for the ATF to arrest me for posession of a legal preban rifle. I could use an early retirement after I sue their asses off.

Half the guys on the ATF question and answer lines don't know what they are talking about.  I called one time about putting a folding stock on a pump action shotgun.  He said I couldn't put a folding stock on a semi-auto gun made after 1994.  I said it's not semi-auto it's pump action, there is a difference.  He said no pump action is still considered semi-auto in that more than one round can be held by the gun.  I hung up and looked over the law.  The law clearly states that manual guns such as pumps are not considered semi-auto.

Guys, the burden of proof is on the accused to prove their gun is a preban.  BATF doesn't have to prove anything more than you were in possession of a semiauto assault weapon.

Read 18 USC 922(v).  Now read 18 USC 922(o).  922(v) deals with possession of an assault weapon, 922(o) with machineguns.  The construction of both offenses is the same; the first section creates an offense for possession, a subsequent section creates an affirmative defense to a charge of possession.  While I know of no cases where possession of a semiauto assault weapon has been appealed up to a US Circuit court, possession of machineguns under 922(o) has.  In both US v. Gonzalez and US v. Just the court held that the exculpatory subsections in 922(o) were affirmative defenses and thus the burden of proof fell on the accused to prove.  Because of the similarity of construction and wording of 922(o) and (v), there is no doubt the exculpatory subsection under 922(v) are also to be construed as affirmative defenses placing the burden of proof on the defendant.  The gov't merely has to prove you were in possession - if you want to evade conviction, YOU have to prove it was pre-ban.

Shaggy is correct regarding the 'affirmative defense' language.  'Affirmative defense' does NOT mean you will not be arrested, not be booked and jailed, or will not have your weapon confiscated as evidence if BATF suspects the AW is illegal.  

Think of it this way: the use of deadly force in defense of one's own life is an affirmative defense to a charge of murder.  That doesn't mean that if you cap someone and claim it was self-defense, the police are going to just shrug, go "Oh, yeah, you're right." and walk away without you in bracelets.  It is simply a defense that can be raised at trial (and only at trial) to defeat the state's case...it is not a 'get out jail free' card nor a 'you can't touch me' sticker.

heh glad my is stamped ar 15

Right.  

It is the same as any other "defense" available to a defendant in a criminal case.  The use of the phrase "affirmative defense" is a poor choice and oxymoronic since [i]all[/i] defenses in a criminal case are "affirmative".  I don't konw why they chose to use this language (usually relates to civil cases where the defense must be plead prior to trial).

Another idiotic ruling from the agency famous for being consistently inconsistent. Once a machinegun always a machinegun, once a handgun always a handgun, but once an "assault weapon" not always an "assault weapon"?????

The atf should be disbanded and all of the agents forbidden from ever being employed in law or ANY government related jobs.

Well, yes and no......

First, Bishop is right - the vast majority of ATF employees are just clerks and bureaucrats, and not gun people.  They are generally clueless about everything except how the agency wants them to push their own paper around.  Kind of like asking the lady at the DMV a technical question about cars.

Second, even if you get an opinion in writing from the ATF, it's worthless!!!

I have a friend who is a former US Justice Dept. Prosecutor and now has his own private practice representing some of the most high profile machine gun dealers and manufacturers in the country.  He says that even if you have a personal letter from Ed Owen stating that what you did was perfectly legal, it's totally meaningless in court because the legislature makes the law, not the ATF.  He has clients who spent time in prison because they did something that the ATF said was ok, but the judge decided differently.

Plus, it turns out that no government employee can be held liable for giving bad advice.  You can call the IRS and follow the agent's instructions to the letter and still go to jail for tax evasion, and there's nothing you can do about it.  (It happens far more frequently than you think!)

I know this sounds bad, and it is.  But this is the way the law works.

So don't bother calling ATF and asking technical questions - they'll probably give you bad advice.  And even if you get it in writing it won't help you in court.

The one place where having an ATF opinion in writing will help you is to disprove intent.  In crimes of strict liability, it doesn't matter if you knew what you were doing was illegal.  In crimes where intent is a factor (eg "knowingly possessing a semi-auto assault weapon") it comes down to whether you knew, or reasonably should have known what you were doing was illegal.

A written opinion from the responsible agency basically removes any element of intent, provided you followed the agency's instructions.  My .02

Your friend is right in one respect, to-wit:  A letter from the Tech. Branch can never serve as a legal excuse to do something illegal.  That's obvious and should not take a lawyer to figure out that one.

However, your contention that the letter is worthless is poor advice.  A letter from the ATF Tech. Branch usually, for the most part, will give you a position on a not-so-ambiguous area of the law.  They don't hand out letters regarding questions they don't really know the answer to.  If you are unsure about a course of action, write the Tech. Branch, do the research and consult an attorney.  That is the prudent thing to do, despite your friend's anectdotal examples of letters that were legally wrong (I would love to see specific examples of this- please email me with them if you can).  Don't walk around holding up the letter as if it were a "get-out-of-jail-free card", however, use them as much as possible in order to gain as much perspective as possible and as an aid in research.  You would be suprised at the number of times they get it right; I was.

Congress has given the Commissioner of the Treasury (ATF) the authority to interpret the legislation and to promulgate rules and regulations which are enforceable to the same extent as the legislation.  In addition the judiciary further defines the law taking into consideration what the intent of the legislation was.

Great explanation.  Good post.  If you didn't go through law school, you should.

What if you bought a complete pre-ban rifle like today May 14 2001.  And you decide to stripped it apart and replace upper with a different Pre-ban like an M4 with a flash suppressor with the bayonet lug is that illegal to do? since you bought a so called pre-ban gun today and decide to replace the parts to a different pre-ban configuration.
So a rifle that's classified as pre-ban sold in the year 2001 cannot be reassembled as a Pre-ban gun only to a post-ban config?
This law is confusing sometimes!

Bought a pre-ban stripped lower about a year after the 94 ban from my FFL.I had the intent of building it into a complete rifle with pre-ban features. I made this intent clear to FFL before completeing transaction. He assured me this lower was legal to build into pre-ban configuration. Time passes and I hear it is illegal to build a AW on a stripped pre-ban lower with pre-ban features.Shit what to do, what to do....? I e-mailed the original manufacturer the serial #"s from my lower. They confirm it is a pre-ban lower and was shipped from factory as a complete rifle. That's good enough for me. I kept two copies of thier return e-mail to me for my records. If that doesn't satify the ATF/courts/judge, nothing will. I say I'm legal, f#*k it if I ain't at this point.