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Posted: 12/19/2001 4:43:29 PM EDT
In the recent BATF letter thread, there was much talk in regards to the burden of proof when it comes to proving your exemption to the AW ban with a pre 9/13/94 rifle. The BATF letter claims, and the lawyers seem to agree with them, that the burden of proof is on the possessor of the AW to provide documentation throughout it's lifespan that the rifle never changed hands or was removed from it's complete parts kit. Now, I'd like to draw your attention to this news article [url]www.channel4000.com/news/stories/news-113239220011219-081253.html[/url] To summorize...A judge struct down a Minnesota Child Porn law, because it apparently placed the burden of proof on the possessor of pornography to prove that the subjects involved where not minors! The judged claimed this was unconstitional, because it shifted the burden of proof from the state to the defendant. Now, my question to the lawyers on here. Why can't the same logic be applied to the AW law and opinion letters? If someone owns a SAW, is charged with possession, the defendant provides a letter from the manufacturer stating that it left their premises as a complete rifle prior to 9/13/94, wouldn't it now be up to the prosecutor/BATF to prove that somewhere along the line it was seperated and transfered as an unqualifying exemption?
Link Posted: 12/19/2001 5:58:30 PM EDT
The elements of these two crimes are different. If you're over 18, pornography is legal to posses, unless it's child porn. The government must prove that the models/actors in pornography are under 18 to make their prima facie case. In the matter of 'assault weapons', the law is written such that all weapons which meet the description are outlawed, providing an exemption for grandfathered pre-ban weapons. The government defined all 'semi auto assault weapons' as banned, and only provided the grandfather clause to avoid making a bill of attainder, or having to compensate all existing owners for the illegalization and confiscation. The government must only prove that the weapon is a 'semi auto assault weapon' under the law to make their prima facie case, and the burden is then on the defense to prove the banned weapon in question is eligible for exemption. It's all in the way the laws are written. Whether it's fair, equitable or constitutional is another matter, but the matter seems fairly safe from the kind of reversal you allude to in the child porn matter, since the elements of the crime are laid out differently between the two statutes.
Link Posted: 12/19/2001 6:08:01 PM EDT
Link Posted: 12/19/2001 7:00:42 PM EDT
Paul - we've been through this before. There's two seperate issues here. First is the status of a rifle meeting the statutory definition of an assault weapon under 921(a)(30). Possession of any semi auto rifle that can accept a detachable mag and has two or more "assault features" is a crime. A defense exists if the firearm is a preban, however, the burder of proving it was indeed assembled into a preban configuration prior to 9-13-94 falls upon the defendant - you have to prove your own defense. If you can't prove the gun is a true pre-ban, the gov't need not go any further; they've got you right there. If, on the other hand, you have proof - a letter from the factory, etc.- that documents the gun was assembled as an assault rifle prior to 9-13-94, the gov't can go one step further with the issue of dissassembly. Assuming you have a letter from the factory (for example) or other documentation its a genuine preban, they can try to prove your defense (that its a documentable preban) is inapplicable because the gun was disassembled and the receiver sold seperate from the parts necessary to completely assemble the gun as an "assault rifle". That burden - proving your defense is inapplicable- falls upon them.
Link Posted: 12/19/2001 7:37:07 PM EDT
[Last Edit: 12/19/2001 7:32:17 PM EDT by stator]
I don't think there are any lawyers here. I must say that I'm not a lawyer but I've hired my fair share and have one on retainer. The prosecution must always prove that a crime existed. This includes that the prosecuters must prove that the rifle is illegal. However, this doesn't preclude the defense from proving that there was no crime or that the rifle was not illegal. All good defense lawyers take this approach. Perhaps this is what's confusing some. The constitution requires that all criminal defendents be held innocent until proven guilty. The last time I read the constitution, I didn't catch the part which excluded firearm related charges. There are, however, some circumstances where the defendant has some burden of proof. The only cases where these exists that I'm aware of is in sexual harrassment and discrimination cases. How can our judicial system allow this per our constitution is beyond me. Sometimes, it is almost unbearable to be an employer. Finally, for anyone that doubts what I've said, you should look at on how our gun laws are very seldom enforced. Particularly the AW bans like in CA. The last stats I saw was that AW registration compliance was running at slightly over 10%. Wow! I do expect HCI to sue the CA DOJ again to force him to prosecute registration violations.
Link Posted: 12/19/2001 8:16:16 PM EDT
[Last Edit: 12/19/2001 8:19:32 PM EDT by shaggy]
Stator - I am a lawyer. And while it is true you are innocent until proven guilty, you have to determine the nature of the crime; that is, what constitutes "guilt". In the case of possession of a "semi-automatic assault rifle", the element of the crime is as follows; 1. Possession (with the requisite mens rea - not difficult, considering even the most casual inspection will reveal the proscribed features). 2. ...of a semiautomatic rifle with the ability to accept a detachable mag, and two or more statutorily defined features. Thats all that is needed to make a prima facia case. Period. End of story. The fact that a particular gun is "pre-ban" is only a defense, and the burden of proof in proving that defense falls upon the defendant. The fact that a gun is a preban is NOT an element of the offense - thus the prosecution has no duty to disprove it as part of their case. The problem here is that most gun owners either don't understand the law as it pertains to the elements of the crime or can't (or don't want to) belive the threshhold for guilt is so low.
Link Posted: 12/20/2001 6:03:47 AM EDT
[Last Edit: 12/20/2001 6:09:17 AM EDT by stator]
You still don't sound like a lawyer. My lawyer says that the prosecution must prove "criminal possession". Not just simple possession. Besides, the jury will not be given to say that the burden of proof is on the defense. Perhaps in CCCP, but in in the USA. I think you are confusing the burden of proof from defense manuevers. The burden of proof still rests on the prosecution as they will have to show that the rifle was never nor longer a preban. In this country, the jury will never be given instructions otherwise. The only exceptions I'm aware, I've mentioned above. If you are a lawyer, post a case supporting your claim.
Link Posted: 12/20/2001 8:52:06 AM EDT
[Last Edit: 12/20/2001 8:57:27 AM EDT by shaggy]
Stator, I really don't give a rat's ass if you think I sound like a lawyer or not - certainly doesn't change the fact that I am. And it certainly doesn't change the fact that you can't provide anything other same old argument of innocent until proven guilty, which I've already refuted. If you've talked to your lawyer and he can't provide anything better than this, you should find a better lawyer. With [i]criminal possession[/i] I think your lawyer is referring to the requisite mens rea, however, all that is necessary is to show (a) you had possession of a semiauto rifle with a detachable mag two or more assault features, and (b)you knew you had a rifle with those features (kind of obvious from even the most casual inspection). You don't seem to want to beleive me, but can you point to anything case law, or even statute to support your assertion? Hell, you seem to think your lawyer knows best, ask him - get me a cite or something something solid to counter my argument. I can cite two cases in the 5th and 7th Circuits where the court interprets [b]very[/b] similarly worded and structured statutes as defenses and thus finds the burden of proof falls on the defense to establish his own defense. Check out [i]US v. Gonzales[/i] and [i]US v. Just[/i]. Now, can you provide me with something...anything... that supports [i]your[/i] position. (edited to add...) BTW Stator, in regard to another post of yours, have you read [i]Chevron[/i] or any of the post-NIRA administrative law cases yet? ([i]Federal Radio Commission v. Nelson, Yakus v. US, Mistretta v. US, US v. 53 Eclectus Parrots[/i], etc.)
Link Posted: 12/20/2001 9:53:17 AM EDT
stator, Who's your attorney?
Link Posted: 12/20/2001 10:19:21 AM EDT
Stator, Your attorney sounds make-believe and you sound like you are full of shit. Shaggy does not "sound" like a lawyer? What kind of crap, movie of the week, TV shows have you been watching to figure out how a lawyer is supposed to sound. And you have a lawyer on "retainer"? If that is true, which I doubt, I certainly hope its not a criminal defense attorney; if so, you need to make some significant life changes. If not, what the hell would he know about a very specific peice of federal criminal statutory language? Yes, he did learn as a 1L that there is a presumption of innocence in American criminal jurisprudence, however, he/you are wrong about what that means in the context of this question. The government need only establish the essential elements laid out in the statute to prove their prima facia case. When they rest, the defendant makes a motion to strike the evidence as a matter of law. If that fails, it's his case and he then has the opportunity to present defenses, including possible exemptions provided in the statute. In this case, if they proved you had an AW, they proved their case in chief. They don't have to prove it's not exempted. Why? Look at the statute itself, it's not an essential element. The grandfather language is separate and apart from the body of the essential elements; it's not part of the government's burden. It is therefore available to a defendant as a possible defense. I've been practicing for almost 11 years in the Eastern District of Virginia (4th Circuit) in one of the most aggressive and conservative federal circuits. I've seen my share of firearms cases, drug conspiracy cases and Exile cases. Never have I seen a prosecution, standing by itself (and not part of some big drug conspiracy) under this fact pattern. AUSAs and most of the agents I know are too busy to deal with something like this. Further, when the illegal possession of an AW is ancillary to a big multi-count indictment, the exemption is not even an afterthought given the types of defendants that are usually charged. However, as usual, I always advise everyone to abide by the law and keep these discussions academic. Anyway, thank you for at least a good laugh.
Link Posted: 12/20/2001 12:02:42 PM EDT
[Last Edit: 12/20/2001 12:06:48 PM EDT by Right-to-Bear]
I don't think the law would hold up to constitutional scrutiny. I am a lawyer, but I will fess-up right away that I only do civil work. I agree, the law as written seems to place the burden on proving it is an exempt weapon on the defendant. But that doesn't change the foundation of criminal law, which is that the Governmment must prove, beyond a reasonable doubt, that you are guily of a crime. The question here is not what the law says, but whether it would hold up on appeal. Let me make it clear.... I agree on your interpretation of what the law says, but again... that's not the question originally posed. I think that a trial judge would agree that unless the gov. closes the loop hole of the exemption, then as a matter of law, they did not prove the case beyond a reasonable doubt. I think that the judge would, after careful consideration, have to give a jury instruction to the effect that it is the gov's burden to prove it's not an exempt gun and therefore legal. To do otherwise would make the standard guilty until proven innocent. It would never hold up on appeal. Of course having said that, I would certainly be prepared, as you all mention, to present plenty of evidence of it's pre-ban status. It really is amazing that there are almost no reported cases of prosecution under this section. I am only aware of one, and it was coupled with other, more serious charges, and as I recall, the guy pled guilty. If anyone can cite any cases procecuted under the ban, please cite them to me. Right-to-Bear
Link Posted: 12/20/2001 12:26:48 PM EDT
Shaggy, Can you give me the cites for Gonzales and Just? Thanks, Right-to-Bear
Link Posted: 12/20/2001 12:40:16 PM EDT
Here is a Cal. case deciding Cal. law that put the burden on the defendant to prove as an affirmative defense that he possessed an assault weapon before the ban: People v. Jimenez (1992) 8 Cal.App.4th 391 , 10 Cal.Rptr.2d 281
Link Posted: 12/20/2001 1:17:47 PM EDT
The problem with putting a law under Constitutional scrutiny is that it most criminal defendants can't afford it.
Link Posted: 12/20/2001 2:02:40 PM EDT
Steve - Thanks for the back-up. I'm still wondering what a lawyer is supposed to sound like. Good thing he hasn't seen me; with the long hair in a pony tail, he'd never believe I was a lawyer.
Link Posted: 12/20/2001 2:23:37 PM EDT
[Last Edit: 12/20/2001 2:17:17 PM EDT by shaggy]
Right-To-Bear - Here's the cites... U.S. v. Just, 74 F.3d 902 (8th Cir 1996) U.S. v. Gonzales, 121 F.3d 928 (5th Cir. 1997) Sorry I goofed, off the top of my head I thought Just was in the 7th, but its the 8th. Both of these cases relate to 922(o), but you'll notice the similarity between 922(o) and 922(v). Consitutionally, I don't think there's any problem. I don't like it, but I think it'll be a cold day in Hell before the 2nd Amendment gets strict scrutiny. And although the Supreme Court has never really addressed the issue, I honestly think intermediate scrutiny is about the best we could possibly hope for... and even that, I'd say would be a stretch. Rational basis is about all the 2nd will ever get. While 922(v) prosecutions are rare, 922(o) has been litigated extensively and with the exeption of one or two anomolies, its been upheld. Similar to 922(v) you need proof of its status (under 922(v) its any proof of preban status, under 922(o) its specifically registration on the NFRTR). Thus 922(o) is far more restrictive than 922(v) in the types of proof acceptable, but without that proof, a defendant is in violation.
Link Posted: 12/20/2001 5:17:31 PM EDT
Thanks to the lawyers, Circuits and Shaggy, for the comments. I respect the writings of Steve, Shaggy, and Cicuits, but I have to think what Right-To-Bear says, in regards to burden of proof has some legitamacy. I'm not a lawyer, but my father (RIP) was for 26 years, and from remembering my discussions with him, what he said seems to be more along the lines of what R2B said.
Link Posted: 12/21/2001 1:22:24 AM EDT
Ok, here's a hypo for you guys. I haven't taken Crim Pro (yet) so I don't know the answers, although I THINK I know the answers. (yes and then no) Prosecution makes its prima facie case thus satisfying its burdens (production and proof). Defense says "Yeah, he possessed it and knew what it was. Damn right he did. It was manufactured and assembled before 9/13/94 as a complete rifle." Is this considered an "affirmative defense", shifting the burdens to the D? Or is there some other term (some kind of demurrer?) for a defense based on an explicit statutory exception? If "not manufactured as a complete rifle/shotgun/pistol prior to 9/13/94" is NOT an element of the crime (as we seem to have decided), then may the prosecution present evidence in anticipation of this defense (or must it wait until the defense raises the issue)?
Link Posted: 12/21/2001 10:29:41 AM EDT
[Last Edit: 12/21/2001 10:29:54 AM EDT by Right-to-Bear]
Shaggy and Steve, I’ve now read Gonzales and Just. I have to say, you have a point with Gonzales. These quotes are from the case: “Gonzales, Jr., argues that the statute requires the government to demonstrate, beyond a reasonable doubt, that the defendant did not lawfully possess the machinegun before the effective date of the statute. We disagree.” “The exception for lawfully possessed machineguns is an affirmative defense, however, not an element of the offense. Therefore, the government is under no duty to disprove this affirmative defense; on the contrary, the burden was on Gonzales, Jr., to establish this affirmative defense. See United States v. Just, 74 F.3d 902, 904 (8th Cir.1996). Having failed to prove that he lawfully possessed the machinegun prior to May 19, 1986, Gonzales, Jr., has failed to establish his affirmative defense, and the government is under no obligation to prove the negative.” My only problem is that the Gonzales court cites the Just opinion. When reading Just, the only issue is whether the indictment pled sufficient facts. It does not deal with the due process argument. Where the court cites to Just, it deals with what must be in the indictment. In fact, the Just opinion states that the trial judge in fact gave a jury instruction that the Government had to prove that it was not an exempt machinegun. On appeal the court says that "any error in its submission to the jury was therefore harmless. (Meaning since they convicted him anyway). Your previous post mentions strict scrutiny with the second amendment. However, this isn’t a second amendment issue, it’s a due process issue. Without better authority from Gonzales (besides only being a 5th circuit decision), I’m still not convinced. Honestly, I didn’t (and don’t) have time to thoroughly research the issue. Ok, lets say it stands up to due process, the government never presents any evidence as to pre-ban exempt status, and you have to prove it is a preban. If you present evidence from the manufacturer that it was a complete rifle before the ban, isn’t that enough? Haven’t you proven your affirmative defense? Then, assuming that the crazy recent ATF opinion is accepted, doesn’t the burden shift back to the government again to prove it “lost its pre-ban status” at some point? If not, then you are in the same position of having to “proof a negative” that the Gonzales court says the government does not have to do. Why would you? [Edited to add]: (Shaggy, I just reread your earlier post and understand that you agree with this part.) It’s all pretty damn interesting. Don’t you think?
Link Posted: 12/21/2001 10:38:45 AM EDT
Interesting in an evil sort of way, yes. I would say that if you're able to prove pre-ban assembly and grandfathered status, then you've made your defense. The government would then have to PROVE that you voided that pre-ban assembled status at some point (under the silly recent ATF opinion), in order to disprove your asserted defense, once it was raised. Similarly, while the government only needs to show that you knowingly possessed a 'semi automatic assault weapon' in order to get an indictment and proceed to trial, if you have clear and admissible evidence of pre-ban status, then I doubt the prosecutor would choose to indict and waste the money on you proving your defense, or that the trial would survive a motion to dismiss. If you've got that proof of pre-ban status, then the only reason the government would proceed against you would be if they were dead set on bringing you down or tying up your resources on any charges or nothing at all, for other reasons. It's easier to get an indictment on as many charges as possible (whether they have merit or not) in an attempt to overwhelm the efforts of the defense, and let the prosecutor cut an easy deal.
Link Posted: 12/21/2001 2:35:24 PM EDT
[Last Edit: 12/22/2001 6:41:50 AM EDT by Steve-in-VA]
Right-to-Bear: It is interesting and you raise some good points and questions. With regard to the constitutionality, you could focus on two grounds that I can think of right off the bat: 1) Whether the statute is unconstitutionally vague and 2) the due process argument which goes hand-in-hand with the alleged "unconstitutional burden-of-proof shift". I'm not convinced either is a winnable argument but I agree the arguments are not without merit. In the end, I don't think the argument would move beyond the academic arena. In an actual trial, any attorney worth his salt would put on evidence of the defense (of pre-ban status) that would negate the issue being taken up since such proof would exculpate the defendant, obviating the need for an appeal. More likely, such a charge would not move beyond a criminal information. Agents would, at least the ones I know, do at least a modicum of research to check the status of the AW to see if it is grandfathered. If not, every AUSA that I know would knock it out of his/her office in a heart beat once you showed him/her such proof of status. So, I believe the question will probably remain in this bottle of discussion. Also, the defense is not an "affirmative defense". That is a civil defense that must be "affirmatively" plead in a a civil suit (such as the statute of limitations) before trial. If not plead, it's waived. Defenses (other than alibi and insanity) are never required to be plead preliminarily by a defendant in a criminal trial. He would simply present his defense in his case in chief. The burden of proof would remain the same.
Link Posted: 12/22/2001 9:06:20 AM EDT
Placed these comments on the original post - didn't read this one, here goes: I agree that legislative authority furnishes administrative agencies with broad discretion with respect to legal interpretations within their respective area of expertise and that the federal courts usually afford strong deference to these interpretations. However, when these interpretations result in creating criminal conduct, this deference could be tempered by factors herein which include 1. past or customary practice; 2. consistency with other decisions; 3. the reasonableness of complying with the ruling at issue, and its simple logic; and 4. a host of other issues which a particular judge may also deem relevant. I further believe this scrutiny is heightened if the result is that a well- intentioned law-abiding citizen cannot insure that he or she is in compliance with law unless they purchased the SAW NIB. This ruling does not, in my view, address hyper-technical firearms issues, it attempts to address than characterize the potential for human conduct and then makes the citizenry strictly responsible/liable for acts outside their control or even knowledge. This type of interpretation is not an area of ATF expertise. Another issue which I noticed, as have others, is the ATF’s language and impracticable directive: “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.” First: The terms and advice appear equivocal or merely suggestive, not the necessary mandatory language usually associated with criminal legislative language. Second, given that compliance with the above proviso is impossible, the result if viewed to its logical conclusion could criminalize (and certainly devalue) all pre-ban SAWs which was clearly not the intent of the legislation. Which, I presume, was to protect private ownership/sale of pre-ban SAWs. Finally, the past rulings I have read here - once a Machine gun always a machine gun - and the overturning of rulings which suddenly criminalize past conduct - the DSA brake, shed light on this issue. I would think that after eight years of open and notorious (legally I mean) conduct, in the way the public has acted in interpreting 922(v)(1), pre-ban SAWs, an advisory which suddenly and retroactively makes criminal, should not survive judicial review. The ATF cannot allege they were unaware of the previous interpretation and practice given the advertizing, sales, gun shops boards, etc., which have heretofore openly and notoriously treated pre-ban receivers. In sum, the ATF would be in a tight spot enforcing this one. Fly in the ointment? Who really wants to be the test case. Time for the Associations to step up to the plate and fund a court action in a favorable loci.
Link Posted: 12/23/2001 10:37:52 AM EDT
There is no way I can provide receipts for the parts used to construct my preban AR's, since at that time it was not necessary that I retain them.
Link Posted: 12/23/2001 6:54:29 PM EDT
Here is a question that i feel applies to this situation. Oylimpic Arms lost most of their records is a fire, so they cannot determin if a certian serno left as a complete weapon. Now,If I have a Oly with a serno in the range of T7XXX was manufactured in 1991or 1992, and I have it as a complete preban with bayo, supressor, and collapasable stock, who would have to prove it's status? I think that Reasonable Doubt can be applied (why would anyone own a lower for 2 years before building a complete weapon?) and the Burden of Proof would be on the proscution. How would you mount a defense if you had a client with this kind of weapon? [smoke]
Link Posted: 12/23/2001 10:51:59 PM EDT
[Last Edit: 12/23/2001 10:47:34 PM EDT by cc48510]
18 USC 44 Sec. 922(v)-- (1) It shall be unlawful for a person to manufacture, transfer, or possess a semiautomatic assault weapon. (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. (3) Paragraph (1) shall not apply to -             (A) any of the firearms, or replicas or duplicates of the firearms, specified in Appendix A to this section, as such firearms were manufactured on October 1, 1993;             (B) any firearm that -                         (i) is manually operated by bolt, pump, lever, or slide action;                         (ii) has been rendered permanently inoperable; or                         (iii) is an antique firearm;             (C) any semiautomatic rifle that cannot accept a detachable magazine that holds more than 5 rounds of ammunition; or             (D) any semiautomatic shotgun that cannot hold more than 5 rounds of ammunition in a fixed or detachable magazine. The fact that a firearm is not listed in Appendix A shall not be construed to mean that paragraph (1) applies to such firearm. No firearm exempted by this subsection may be deleted from Appendix A so long as this subsection is in effect. (4) Paragraph (1) shall not apply to -             (A) the manufacture for, transfer to, or possession by the United States or a department or agency of the United States or a State or a department, agency, or political subdivision of a State, or a transfer to or possession by a law enforcement officer employed by such an entity for purposes of law enforcement (whether on or off duty);             (B) the transfer to a licensee under title I of the Atomic Energy Act of 1954 for purposes of establishing and maintaining an on-site physical protection system and security organization required by Federal law, or possession by an employee or contractor of such licensee on-site for such purposes or off-site for purposes of licensee-authorized training or transportation of nuclear materials;             (C) the possession, by an individual who is retired from service with a law enforcement agency and is not otherwise prohibited from receiving a firearm, of a semiautomatic assault weapon transferred to the individual by the agency upon such retirement; or             (D) the manufacture, transfer, or possession of a semiautomatic assault weapon by a licensed manufacturer or licensed importer for the purposes of testing or experimentation authorized by the Secretary.
Link Posted: 12/23/2001 11:01:47 PM EDT
I tend to disagree with Steve, Circuits, et al. regarding this issue. I read the law to say that if it is a Pre-Ban then it is not an illegal firearm. It does not say "it is a defense." Rather, it says "shall not apply." Some may read it to say it is illagal to have a SAW, but those already in existence are exempted. Whatever you believe, none of this lends any credence to the BATF's ridiculously unfounded opinion.
(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.
View Quote
Link Posted: 12/23/2001 11:15:01 PM EDT
Here is a more accurate interpretation: There are several situations in which the ban does not apply. In some of these you would be expected to prove that you fall into such. In others, the Prosecution would be expected to prove certain points and you to prove others. For example: 1) You Possessed The Firearm -- Prosecution 2) The Firearm Is A SAW -- Prosecution 3)Raise An Argument That It Is A Pre-Ban -- Defense 4) The Serial Number Indicates Pre-Ban Status -- Defense 5) The Firearm Was Manufactured After 9/13/1994 -- Prosecution 6) The Firearm Was Not LAWFULLY Possessed Prior To 9/13/1994 -- Prosecution I believe once the Defense raises the argument that it is a Pre-Ban all they must show is that the Serial Number indicates it was manufactured before 9/13/1994 or some other evidence to that effect. After that, it is up to the Prosecution to refute that evidence or prove that it (The SAW) is subject to the ban.
Link Posted: 12/23/2001 11:19:26 PM EDT
"I got a whole floor of lawyers workin on this shit right now!" (name the movie) Remember guys, we are all working toward the same goal.
Link Posted: 12/24/2001 10:01:18 PM EDT
Robert - You raise some good issues, but I still think this advisory opinion would fly. First, there's no past or customary practice because this section (922v) has been so little enforced to begin with. But that seems to be less a matter of custom or policy than a matter of BATF and the Justice Dept. dealing with enforcement priorities on a finite budget. I don't think a federal court is going to rule against stepped-up BATF enforcement of this section because they haven't strongly enforced it in the past when it was a low priority crime and investigation and enforcement resources were diverted to other priotities. Just because a certain type of crime may not be investigated and enforced to fullest extent possible because it may be deemed to be a lower priority item at a certain point in time does not mean it is customary practice to waive enforcement of that section. It only means the agency has a limited budget and has to make decisions as to where to direct limited investigatory and enforcement resources. As far as consistancy with other decisions, I know of no other decision or advisory which is contradicted by this advisory. The reasonableness of compliance may be an issue, but once you abandon the idea that any possession of a "pre-ban" is somehow guaranteed, the issue of compliance becomes easy; simply remove the offending features if you do not have 100% certainty as to the pedigree of the weapon in question. Look at the post-86 cases involving possession of machineguns where the federal courts had to reconcile the NFA with 922(o) and BATF's refusal to accept the making tax on new machineguns for civilian possesion. In those cases, while defendants complained that it was impossible to comply (as long as BATF would not accept the making tax, registration is impossible), but the courts held that you can comply by simply not transferring or possessing a MG which has not been registered prior to the May 1986 cutoff date. I believe it would be seen as somewhat analogous to the situation here - to avoid prosecution, simply don't possess a SAW if you don't have 100% certainty as to its status. If you have a SAW and are not 100% certain, simply remove the proscribed assault features so it is no longer a SAW by definition. I do agree with you, however, that there are some potential problems here for BATF, but I don't think they're anywhere close to fatal to BATF's advisory opinion.
Link Posted: 12/24/2001 10:28:10 PM EDT
Link Posted: 12/25/2001 1:30:36 PM EDT
Link Posted: 12/25/2001 7:54:29 PM EDT
[Last Edit: 12/25/2001 11:22:02 PM EDT by NYPatriot]
Shaggy, please explain to me how it can be that the "assault weapons" ban goes into effect in 1994, and for 7+ years informed gun owners, attorneys who specialize in firearms law, and even manufacturers of "evil" rifles read the law to mean once a grandfathered "assault weapon", always a grandfathered "assault weapon". During this span of time, tens of thousands of pre ban lowers are conspicuously bought and sold under this interpretation, and yet the BATF never says anything to the contrary. Now, almost 8 years later, the BATF decides, out of the blue, that if said weapon has ever been disassembled, segregated, and sold without a pre ban upper and parts, it magically loses its pre ban status! I know that ignorance of the law is not a defense, but this does not seem to be a case of ignorance. It seems that the BATF has reinterpreted existing and well-known legislation on the fly, and by administrative decree, made it more restrictive than was its original intent. In doing so, they have retroactively criminalized actions that were not previously known (at least by anyone outside of the BATF) to be criminal acts, and they have eradicated a large number of the legally owned and grandfathered pre ban AR15s' from circulation, which was clearly not the letter or intent of the law. How does this float???
Link Posted: 12/25/2001 9:14:10 PM EDT
[Last Edit: 12/25/2001 11:24:01 PM EDT by NYPatriot]
Seeing as I am in rant mode this late at night, sleep is not an option, so lets continue... Let me lay out a scenario that has undoubtedly played itself out countless times. John Doe has legally owned a Colt Sporter since before the "assault weapons" ban was even a glimmer in Chuck Schumer's eye. Sometime last year, John decided to remake his rifle into an M4gery. He settles on an M4 barreled upper receiver from Bushmaster, and decides to sell off his Colt 20" upper, as he will no longer need it. Here is the problem... He parts company with the Colt pre ban upper at a gun show a few days [b]BEFORE[/b] he orders and receives his new Bushmaster upper in the mail. John has bent over backwards to stay legal. His weapon was made by Colt, so there is no doubt that it left the factory as a complete rifle. He is the original owner of the weapon, and he even has his original bill of sale. He has done his research over the years, and everything that he has ever read tells him that he can legally reconfigure his certifiably grandfathered pre ban rifle into any other variant of certified pre ban rifle. Now, a year later, the BATF issues an opinion which reinterprets the law, and makes John a felon for both manufacturing and possessing an illegal "assault weapon" Am I reading their opinion correctly, and if so, how can it possibly withstand the scrutiny of judicial review?
Link Posted: 12/25/2001 9:55:53 PM EDT
[Last Edit: 12/25/2001 10:01:01 PM EDT by cc48510]
I repeat it again, the BATF opinion is a load of shit.
18 USC 44 Sec. 922(v)(2)-- Paragraph (1) shall not apply to the possession or transfer of any semiautomatic assault weapon otherwise lawfully possessed under Federal law [size=2][red][b][u]on the date of the enactment of this subsection.[/u][/b][/red][/size=2]
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Federal Law does NOT say "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, unless such firearm is made into in a configuration that no longer meets the definition of a 'semiautomatic assault weapon' as defined in 18 USC 44 Sec. 921 and such parts to return such firearm to a configuration that constitutes a 'semi-automatic assault weapon' as defined in 18 USC 44 Sec. 921 are no longer in the possession of the possessor of said firearm."
Link Posted: 12/26/2001 10:21:18 PM EDT
[Last Edit: 12/26/2001 10:22:00 PM EDT by Dave_G]
NYPatriot,
Shaggy, please explain to me how it can be that the "assault weapons" ban goes into effect in 1994, and for 7+ years informed gun owners, attorneys who specialize in firearms law, and even manufacturers of "evil" rifles read the law to mean once a grandfathered "assault weapon", always a grandfathered "assault weapon". During this span of time, tens of thousands of pre ban lowers are conspicuously bought and sold under this interpretation, and yet the BATF never says anything to the contrary. Now, almost 8 years later, the BATF decides, out of the blue, that if said weapon has ever been disassembled, segregated, and sold without a pre ban upper and parts, it magically loses its pre ban status!
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I can answer that with nearly absolute certainty! Why? Because nobody sent them a letter and asked them what their opinion on the subject was until [b]I[/b] did it in March 2001 and received the response in November 2001. cc, You miss a very important point. If at some time the owner of a 922(v)(2) exempt assault weapon reconfigures it so that it no longer qualifies as a 921(a)(30) assault weapon, and either disposes of all of the parts required to reconfigure it as a 921(a)(30) assault weapon or disposes of the receiver stripped of the 921(a)(30) parts, [b]then the receiver is no longer an assault weapon and 922(v)(2) no longer applies.[/b] No stripped AR15-type receiver, not including those actually marked "AR-15", are semiautomatic assault weapons. They lack the defining features. If they are not 921(a)(30) assault weapons, 922(v)(2) does not apply to them and they cannot be configured as such. To do so violates 922(v)(1). Federal law does not say "Once a 921(a)(30) Assault Weapon, always a 921(a)(30) Assault Weapon."
Link Posted: 12/26/2001 11:55:14 PM EDT
Dave, Federal Law also does not say "Once a 26 USC 53 Sec. 5845(b) Machine Gun Always A Machine Gun" That is an ATF interpration also. The closest to this in 26 USC 53 is the definition of a Machine Gun which says "is designed to shoot more than..." But, this would not include any gun redesigned into a Machine Gun once it is returned to a non-MG configuration. Since, it would not be: 1) any weapon which shoots automatically more than one shot, without manual reloading, by a single function of the trigger. 2) can be readily restored to shoot automatically more than one shot, without manual reloading, by a single function of the trigger. 3) the frame or receiver of any such weapon. 4) any part designed and intended solely and exclusively for use in converting a weapon into a machinegun. 5) any combination of parts designed and intended, for use in converting a weapon into a machinegun. 5) any combination of parts from which a machinegun can be assembled.
26 USC 53 Sec. 5845(b)-- The term 'machinegun' means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.
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Link Posted: 12/27/2001 12:02:47 AM EDT
Just to clarify my last post, I am saying that the ATF made the "Once a Machine Gun, Always a Machine Gun" decision not based on the statutes, but on how to get the most offenders. This is exactly how this opinion was constructed. It was not constructed based on the statute, but rather on how to create the most "illegal" firearms. I know the ATF opinions regarding MGs are considered virtual laws. Otherwise, DIASes and Open-Bolt Firearms wouldn't be MGs. With the excaption of the fact that the first (DIAS) actually had a solid foundation in 26 USC 53 Sec. 5845(b). The Open-Bolt ruling had a very slim foundation as the law does not say "safely", but rather "readily restored to..."
Link Posted: 12/27/2001 5:46:50 AM EDT
Link Posted: 12/27/2001 7:33:08 AM EDT
cc - There's nothing that requires these types of administrative rulings and advisories to be philosophically consistant with each other; they merely have to have enough logic behind it to stand on its own. Just because BATF takes the position "once a MG, always a MG", does not mean that same principle must be applied to SAW's. There's also major differences in the way a MG and the way a SAW are defined which would explain the difference in rules. A SAW is defined almost completely by the presence of features which are external to the firearm (receiver) itself. An MG, OHOT, is defined by function, but its broad enough to include a part or parts which don't necessarily meet that function, as well as anything which originally was, and can still be readily restored to perform that function. As I understand it, the "once a MG" principle is applied primarily because of the "readily restorable" language in the definition of an MG - language which is not part of the definition of a SAW. A demilled MG receiver can probably be made into an otherwise compliant semi, but the likely first step would be to reweld the registered part (making a machinegun) and then altering it for semi-auto only. The process of putting it back together, even to make a semi, is in the opinion of BATF, apparently too close to readily restorable. Additionally it precludes making semis out of complete, functional MGs, and thus (1)prevents people from not doing complete conversions to semi or conversions which are still "readily restorable" back to MG status, and (2) reduces the risk of conflicts and errors with serial numbers on the NFRTR.
Link Posted: 12/27/2001 10:25:15 AM EDT
[Last Edit: 12/27/2001 10:41:55 AM EDT by NYPatriot]
OK, let me get this straight... There's nothing that requires BATF administrative rulings and advisories to be logically consistent with each other, they carry the full weight of law, and we have never heard of their of their overly restrictive reading of the "Assault weapons" ban, which has produced thousands of unknowing felons because [b] nobody asked them???[/b] Christ, maybe this nation is in need of a second revolution after all??? Seriously though, what is next? Perhaps next year, the BATF will look into its magic 8 ball, and decide that remanufacturing pre ban receivers is not simply repairing them; it is the manufacturing of illegal post ban assault weapons? Presto! The thousands of people who have had Olympic Arms remanufacture their weapons for them are now guilty of possessing and assembling illegal weapons. Oh and there goes another few thousand pre ban weapons out of legal circulation! Maybe they will consult their tea leaves next, and find that yes, pre ban weapons can be repaired, and parts replaced, but only with parts that were in existence, and in "assault weapon" configuration prior to Sept. 13, 1994. Sorry all you people who have built M4gerys since 1994.... You are felons, and tens of thousands of pre ban weapons are no more! But hey, what can we do, it is the BATF's OPNION. Now bow down, and shut up! I think it should be clear by now that, despite what some people on these boards think, the BATF is not a friend of freedom. The higher ups in the bureau obviously have an agenda, and they will use whatever convoluted reasoning is necessary to further curtail our Second Amendment freedoms. God help this once great nation, for we have obviously lost our way.
Link Posted: 12/27/2001 10:34:10 AM EDT
Isn't there supposed to be a sunset clause provision in this bill? If so, given the current pro-gun legislature, there is some likelihood that it will get "expired." I have heard rumors that the prices of pre-bans are going down due to speculation consistent with the above. Anyone here have info on this?
Link Posted: 12/27/2001 10:47:31 AM EDT
[Last Edit: 12/27/2001 10:52:13 AM EDT by NYPatriot]
SouthernShark...
One thing that has always amazed me about gun owners is their reaction to this type of ruling. This is a letter ruling. It state's ATF's position on something (or at least that agent's position). It has no precedential value. Court rulings have precedential value. That means that people in the future will give some defference to the court's ruling. Leter rulings from government agency's do not have such defference. In other words this ruling applies only to this ruling. In ANY other area of the law, environmental or tax rulings for instance, these letter rulings would be challenged in court. But for some reason gun owner's get one of these and treat it as the LAW. It is not the law. It is a government employee's interpretation of the law. A Federal judge could come up with an entirely different interpretation (which could be very good for gun owners). This is obviously BS. I would demand an appeal on this issue. These government appointees make these kind of rulings in every field (its not just guns), but in other fields they get hauled into court over it. Yet gun owners just sit by and take whatever they shovel out.
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Steve-in-VA...
Thanx copterdoctor. Great source of ATF letters and law. I'd like to talk to the guys that posted the letters to verify authenticity. Please remember that some letters could predate changes in the law and are NOT law, just the ATF's position on it.
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What SoutherShark and Steve said!
Link Posted: 12/27/2001 11:33:28 AM EDT
[Last Edit: 12/27/2001 4:16:03 PM EDT by Robertesq1]
Shaggy: I didn't even see that there had been a second page of postings and missed your post. In the interest of friendly polemics I respond. I see you have conducted a thorough and objective analysis, but I respectfully agree to disagree with some of your contentions. I see some conflict with ATF's position in this matter. Considerable discretion is granted to administrative agencies in making determinations which affect our citizenry. But, this discretion is granted on the assumption that the actions of the agencies will be based on consistent standards and a comprehensive evaluation of all the facts and circumstances in a given case, resulting in an objective determination that includes concern for the welfare and interests of the citizenry, as well as the interests of the government. Well intentioned law-abiding gun owners must be able rely upon a modicum of logic and continuity in the interpretation of gun regulations. The ATF has a responsibility to promulgate fair, reasonable and consistent interpretations of law. Their prior opinions (and current practice) form the sole basis for guidance when an individual is attempting to comply with the law and should as well form a basis for their own prospwective determinations. Ergo, if you have the ATF setting forth decisions which impute a designation to a weapon despite alterations which vitiate its essential or illegal characteristics (Machine guns)it is not unreasonable to follow that reasoning to its logical conclusion with respect to SAWs. Which should then maintain their exempt designation despite some alterations. For the ATF to allow open and notorious activity to go unabated and then retroactively imbue illegality should not sit well with an independent trier of fact. I also believe that the impossibility of complying with the letter’s directive (requiring the citizen to research the SAW’s prior history despite legislated confidentiality) is of greater significance than you attribute. It demonstrates the superficial analysis by ATF, their unfamiliarity or remoteness with the law (in their operational area). I have had some experience with prosecutorial bodies and am quite confident that any AUSA having this opinion as the sole basis for a contemplated prosecution would likely decline, even here in the N.E. It further appears that decisional law clearly indicates BATF opinions do not necessarily survive the scrutiny of the courts. But, if no one challenges this particular opinion and it remains "on the books," than the longer it remains unchallenged and the greater the compliance therewith by the public, then, the greater its force. As stated earlier, an organized group should take this on, albeit, in a good forum, not in the Northeast. Finally, I would probably avoid theoretical letters questioning the ATF’s position on CURRENT PRACTICE AND INTERPRETATIONS. Favorable rulings do not expand the area of legality if the ATF gives a questioned practice its blessings; but do create further restrictions if the ATF prohibits a questioned activity. I.e. it is unlikely that prior to this determination that any individual agent would have looked farther than the serial numbers of a SAW at issue. Now, I am sure that this opinion has been promulgated to all the ATF field offices and a new and potentially criminal activity has been created.
Link Posted: 12/27/2001 12:02:47 PM EDT
Robertesq1, I see by your post count that you are new to these forums. Let me be the first to welcome you, and say that your voice of reason is greatly appreciated. [^]
Link Posted: 12/27/2001 1:04:22 PM EDT
NYPatriot: Thank you. I appreciate the welcome, I like this forum, and hope to stick around some. Robert
Link Posted: 12/29/2001 11:16:28 AM EDT
Ok, I've read several mentions of the 'new ATF opinion' on the preban thing. Does this mean, according to them, if you buy a lower that was manufactured before the ban, even if it left the factory as a complete rifle, it is illegal to assemble the rifle in a preban config?
Link Posted: 12/29/2001 5:52:17 PM EDT
Link Posted: 12/29/2001 6:13:11 PM EDT
Originally Posted By Steve-in-VA: Stator, Your attorney sounds make-believe and you sound like you are full of shit. Shaggy does not "sound" like a lawyer? What kind of crap, movie of the week, TV shows have you been watching to figure out how a lawyer is supposed to sound. And you have a lawyer on "retainer"? If that is true, which I doubt, I certainly hope its not a criminal defense attorney; if so, you need to make some significant life changes. If not, what the hell would he know about a very specific peice of federal criminal statutory language? Yes, he did learn as a 1L that there is a presumption of innocence in American criminal jurisprudence, however, he/you are wrong about what that means in the context of this question. The government need only establish the essential elements laid out in the statute to prove their prima facia case. When they rest, the defendant makes a motion to strike the evidence as a matter of law. If that fails, it's his case and he then has the opportunity to present defenses, including possible exemptions provided in the statute. In this case, if they proved you had an AW, they proved their case in chief. They don't have to prove it's not exempted. Why? Look at the statute itself, it's not an essential element. The grandfather language is separate and apart from the body of the essential elements; it's not part of the government's burden. It is therefore available to a defendant as a possible defense. I've been practicing for almost 11 years in the Eastern District of Virginia (4th Circuit) in one of the most aggressive and conservative federal circuits. I've seen my share of firearms cases, drug conspiracy cases and Exile cases. Never have I seen a prosecution, standing by itself (and not part of some big drug conspiracy) under this fact pattern. AUSAs and most of the agents I know are too busy to deal with something like this. Further, when the illegal possession of an AW is ancillary to a big multi-count indictment, the exemption is not even an afterthought given the types of defendants that are usually charged. However, as usual, I always advise everyone to abide by the law and keep these discussions academic. Anyway, thank you for at least a good laugh.
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Is this a reasonable English interpretation?: Possession of a rifle with three evil features is illegal, period. Thats the law. You have a rifle that meets the criteria- they have a case against you. (I use the word case loosely) However, by providing documentation proving that your rifle is "preban"- you have a defense. You must provide the defense. Similar to the following in various, vage ways?: 1. Providing prescription note with prescription drugs. 2. Having concealed carry license on person when carrying. 3. Having agricultural license to hunt at night. These seem to me to be examples of providing proof of legality to do things that are otherwise illegal. Is this the jist??? Should I carry my letter with my rifle at all times? Perhaps in the buttstock? Thanks.
Link Posted: 12/29/2001 9:58:42 PM EDT
[Last Edit: 12/29/2001 10:02:23 PM EDT by NYPatriot]
Steve-in-VA... Another voice of reason! [:)]
The letter is just an opinion on what a government agency thinks the law reads; IT'S NOT LAW and does not "stand" as anything but hearsay in a court of law. Now, ATF may act in accordance with the letter, since it's how they interpret the law they are sanctioned to enforce, but that is a far cry from actual legislation or a writing with precedential authority in a court of law. At a trial, it would have NO place in a courtroom. The AUSA trying the case would or would not argue in accordance with it, depending on his/her own take on the law.
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And for those who don't already know... Yes, he is a lawyer.
Link Posted: 12/30/2001 7:23:50 AM EDT
How about a note from my Mother?[:D] 99% of the LEO's wouldn't know a preban from a hub cap with the exception of the NRPD who think that all AR-15 series rifles are MG's until they prove otherwise.
Link Posted: 12/30/2001 7:30:30 AM EDT
Originally Posted By NYPatriot: And for those who don't already know... Yes, he is a lawyer.
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But the best part is he has lots of practical experience, knows what he is talking about and never sends you a bill![:D]
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