Kinda far for a bit of grub I'd say.  

Hey, no hard feelings.  Just sharing views on a very stupid law.  Let's all hope (and agitate) for an end to this thing.  Then we will no longer worry about which cosmetic feature goes on which dated rifle.

They (US Attorney really) also has to prove the weapon is not exempt under Para(2), and if it is not exempt, they would have to prove you knew it, or did not care to know it. This is how it works in the real world.

Remember the woman caught going through airport security with gun and LEO mags? DA chose not to attempt to prosecute becuase he could not prove she knowingly violated the law. Happens all the time.

Under your scenario, ATF would be arresting everyone with an AW, and requiring defendant to prove otherwise. Not how it works.

hey sulaco2 i like your thinking how do i prove that though

neilfj & shaggy:

So you're saying that some how through the majic of legalese means the burdon of proof is on the person possessing the assault weapon?

If that is the case, I will still disagree, and retract my BS towards you and reaffirm it to the makers, enforcers and any government official that voted for and upholds this asinign law.

Since I live in sunny CA the costs of new lowers are irrelevant to me since I can't get one.  It appears that from the one post that the diference in value, not cost but value is about $120-140.  so he got diddled in the amount of  -

Actual Value of Pre-ban Lower ($250?)  = AV1

Actual Value of Post-Ban lower ($120?)  = AV2

Actual Cost of Lower (What was paid -unknown) = Price

AV1 minus (Price minus AV2)    

So unless he paid even more than the expressed value he got diddled for probably some where around $90 at a minumum to $200 (hopefully not more) in any case, unless you can find the seller and and have him make good on the difference in values, chalk it up to a leaarning experience and build a post-ban.  Is $100 or so worth taking the chances on?  Hell you can blow $100 on a good meal, or worse on a bad meal.  

theres a point that you gotta suck it up.

Build it illegal, and sell it = not your problem (probably, no guarantee the buyer doesn't bring you into any problems, the chances of problems are slight)

Build it illegal and keep it = a possible problem, but only if something goes to poop and it gets looked at.*

Build it legal = no problem.


*As noted it would only be a problem if the Feds got it and decided they had a problem with you.  Not terribly likely unless you do drugs, threaten the Pres, or you have any of the following who are presently or about to become mad at you  (wifes, ex-wifes, girlfriends, ex-girlfriends, boyfriends, ex-boyfriends, business partners, crooked business partners, in-laws) anybody that would drop a dime on you with the intention of getting you in a shitload of trouble.  Up to you but I've made a few $100 learning experiences and I move on.  (I generally don't let the wife know but then again)

Your not going to get any argument about your re-directed BS call. As for the burden of proof, yep, you got it. Sucks, don't it! Don't believe it, thats OK too but before you dismiss it, post that question in the Legal Forum for Steve-in-VA to answer. He's a lawyer and has the credentials. I'm sure he can explain it better than I.

In either case, I'd still buy you a beer if we ever meet!

Unfortunately, that IS the case.  Look at 18 USC 922(o) and note the similarity in statutory construction to 922(v).  In both [i]Gonzales[/i] and [i]Just[/i] the courts found the second clause to be an affirmative defense to the general provision set in the first, the burden of which fell to the defendant to prove.  Again, I don't know of any 922(v) cases specifically, but both cases show how the courts will most likely address the issue of the BoP for a similarly worded section like 922(v).

Thanks neil (for putting up with my er, ah, Bull Shit).  You're a good egg.

I'ld love to take you up on that beer.

Nothing wrong with a debate, and as far as debates around here go (or commonly referred to as pissing contests), this was extremely civil. I rather enjoyed it, myself!

So what you are saying is, any LEO can arrest anyone in possession of say, a Colt AR-15 SP1, and the burden of proof would be on the defendant to show that said AR-15 was in compliance prior to 09/13/94?

If this is so, than how come it is not happening?

Well Shit my wife IS an ATTORNEY. I will just have to ask her.

I know! Let's all get together for a big cookout!

Spooge Out.

Well, for what it's worth I called the local ATF compliance office with a similar question.  Curiously, they referred me to the ATF's Science and Technology office in Washington DC.  I called the head office and asked, "If I have a letter from a previous owner stating that my lower was a complete rifle prior to 09/13/94, would that be sufficient to keep me out of trouble?"  He said, "Yes, if you have a letter stating that your lower was a complete rifle prior to 09/13/94 that should keep you out of trouble."

Unfortunately, I made the mistake of not recording the agent's name.[banghead]
I'd also feel better if I had something from them in writing.

Of course, in the case of the lower in question, MJP is truly screwed.

fishkepr

Whatever the ATF agent said means nothing.  As you mention - in writing would make a difference in a court of law.  Maybe it wouldn't stand up as gospel, but I bet a jury would aquit.

Thats exactly how it works...or t least how it does in theory.  Why isn't everyone being prosecuted?  Well there's a lot of factors that go into enforcement decisions.  Law enforcement and prosecutorial agencies (both federal and state/local) have limited time and budgets to deal with a wide range of cases and crimes, so many crimes are not enforced with the full effort they could or they are used as leverage to gain a plea and avoid going all the way to court on other crimes.  My guess is that the AWB is a low priority crime because of the time and cost involved in enforcing it to the fullest extent, as well as the chance of winning on all those cases. (Many owners have, or can obtain, records sufficient to prove their weapon is in fact a preban. So for example, why waste a lot of money prosecuting 10 people when only 2 have illegal weapons.  Basically, it probably costs far too much to much to go after everybody for such a low potential rate of success).  Additionally, there's the complications of actually finding and locating guns to be checked without violating other 5th amendment constitutional protections against unreasonable search & seizure (ie. they can't go door to door searching for illegally configured guns without a warrant supported by probable cause).  There's still a lot of ways you could get caught, and I doubt the AUSA or BATF is going to let it slide if a clear cut case lands on their desk, but right now the AWB is a low priority crime and they don't seem to be actively looking for violations.  That doesn't mean they can't procsecute them, however, nor does it mean that if the AWB is extended it will always be a low priority crime (imagine what could happen if the AWB was extended and say Hillary was elected prez in '04 or '08)

Its kind of like sodomy (which is illegal in many states) - its on the books and can be prosecuted, but unless you're very overt about it or get caught in the act, chances are you won't get caught or prosecuted.

(...and FWIW, its Shaggy, Esq.)

This just puts boils on my ass.

"Don't be parinoid."

"You need a tin foil hat"

"It's only to get real crooks to plea bargan."

"They could never prosecute everyone"

shaggy: "but unless you're very overt about it or get caught in the act, chances are you won't get caught or prosecuted."

As it stands today, but what about tomorrow or yes, God forbid, Hitliry gets elected with a Fienstien majority Senate and or House.

I am a law abiding citizen for Gods sake and I fear my government.

I could get someone to vouch for all my prebans, actually only one is home built and subject to proof.  But there are 10s of thousands of home builts out there that were put together since the first civilian aquired receivers have been on the market.  What happens when hear say or manufacturers records don't suffice.  I could go down to the library and check out an August, 1994 issue of the New York Times, set my preban on it and take a picture with a digital camera, come home and set the time and date on my computer to August, 1994 and store the picture in a file so dated, copy it to a floppy disk and take the time stamp from work and set the date back to August, 1994 and stamp the disk.

I figure that at some point they will call BS and require real proof though.  Ya, they will never enforce it.  Well then why the fuck did they make the law in the first place.  Why not just go after the criminals like we're supposed to.  I'll tell you why.  Becaused armed citizens are a deterent to their agenda, more control, more power, for the governing entity.

I fear my government.

It shouldn't be this way.

The gonvernment should fear me.

No complications at all. Go to any PUBLIC gun range. Go to any PUBLIC Gun Show. Go to any PUBLIC gun store. Heck right here on ar15, people advertise AWs for sale. Police enforce sodomy when they see it. They do not enforce AW ban when they see it at shows, range, store.

Bottom line is, this claim that you must prove the gun is pre-ban is false, it is just internet smoke and mirrors. It shows a complete misunderstanding of the law, how it is enforced, and how it is prosecuted. We have 9 years of case history on this law, and the claims of having to prove your innocence cannot be backed up by fact. The law is clear.

Renegade -

Thats lovely thinking but its wrong.

Cite me cases or statute to disprove my point on the burden of proof.  I've provided cites for two cases which you have not addressed other that to dismiss them without mention.  I'm just dying to hear your logic.

The fact that it is generally not prosecuted absent other more serious offenses dos not negate the fact that it is a valid law on the books and [i]can[/i] be prosecuted in the manner I described.

If it is wrong, please show me by example what (city, state LEO Agency) the police are going to gun ranges, shows, stores and arresting anyone and everyone who has a so-called AW, and sending them to court to prove it is legal. Providing 2 cites in a country of 300 million is statistically non-existent. Ask any LEO (like Stickman) if that is how he enforces the law (lock em all up, let the courts sort them out). Name one US Attorney that has prosecuted a few thousand of these types of cases.

It ain't happening. As I said, that ain't how the law is being enforced or prosecuted. If it was, no one in their right mind would dare own one.

We have lots of these "defense to prosecution" type laws here in Texas.  Example: MGs are illegal, but it is a defense to prosecution if you have NFA Tax Stamp. So LEO who sees you with MG can lock you up, even if you produce valid NFA Tax Stamp, and he knows it is valid. According to the law, NFA Tax Stamp has to be shown in court of law as part of your defense of prosecution. Even if acquitted, LEO/DA have every legal right to arrest you again, and start same process over again, and again, and again. However, No LEO or DA does this silliness. LEO makes determination at time of contact. This is my point: what the law says and how it is enforced/prosecuted are two different things.

PS. Please see other thread on DIAS and give me your opinion on pre-81 DIAS issue I posted.

LITTLE KNOWN FACT: ALL post-ban guns are supposed to be marked with the date of manufacture. If they are not, the buyer may assume that they are pre-ban. This is a legitimate defense as long as it is raised as such.