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Posted: 10/30/2002 7:50:43 PM EDT
I was reading in the CFR about the assault weapons ban (Section 922(v)) and I found this interesting little tidbit in section w:


(w)


(4)

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


Interesting, huh?


It's known that some post-ban USGI magazines don't have the LEO/GOV'T ONLY marking on them, and they have been the subject of much speculation. Apparently, if it lacks a serial number, then it's not possible to be prosecuted for having it.

If you found such magazines, say at a gun show, or in a dumpster behind the local army base's supply depot, in theory at least you can own them legally.

It may even be legal to own them if they HAVE the LEO/GOV'T ONLY marking on the, because I have not found any specific passage in federal law, not in the Code of Federal Regulations and not in the United States Code, that specifically prohibits you from owning a magazine with that marking on it. The law just doesn't say "Civilians can't own a magazine with the LEO/GOV'T ONLY markings on it."



I thought it was interesting enough to pass it along.

Thoughts, anyone?

CJ


Link Posted: 10/30/2002 9:01:55 PM EDT
You might want to move this over to the legal forum for the knowledgeable legal eagles there to comment - they seem to really know the law.
Link Posted: 10/30/2002 9:16:30 PM EDT
I'm no legal beagle, but that is interesting.

CM, do you really find digging through lawyer-speak entertaining/fun or are you just really that bored? Either way, I'm glad someone does it, as it enlightens the rest of us who are too lazy to try and find it ourselves.

FOTBR
Link Posted: 10/30/2002 11:52:27 PM EDT
Yes its an interesting point. Here is one to ponder. HK says no 12 round .45 USP mags were imported before the ban. However the mags are sold for $90-120 a pop all the time with no date markings on them. I have one right now in my Tactical. So it is "specifically" exempted but no .45 mags were in country before the ban. Am I breaking the law? I just resign myself to the fact they may take my mag if I use it in self defense someday but I know I cant be prosecuted.

Or how about using a postban .40 mag and putting 14-15 rounds of 9mm in it. Is that illegal? I never did anything to it to "create" a highcapacity magazine.
Link Posted: 10/31/2002 6:14:11 AM EDT
In no particular order...

I do enjoy chasing down the specific text of laws that pertain to a subject that I'm interested in. It has on occasion given me PROOF that I could do more with regard to firearms than I had been TOLD by so-called "experts" who hadn't read ALL of the law. Among other things, I was told by one of these "experts" that it was illegal to use a high capacity magazine in a post-ban gun, which simply isn't true, at least not by Federal law though some states may have such a restriction.

As for your 12 round HK magazine, if it doesn't have the LEO/GOV'T marking on it or a serial number, you're golden. No proof of its post-ban status is possible.

Technically, you are not even prohibited from owning something which merely carries the LEO/GOV'T ONLY marking. You CAN legally purchase a new AR, for example, with that marking on it if you can get the manufacturer to place it on the rifle for you, and of course the rifle must be configured as post-ban legal. There is no specific language in the law that prohibits owning an item that carries that marking on it purely for the marking itself. It WOULD be illegal to own an LEO magazine that carries a serial number which can be traced to a post-ban date of manufacture, though.

Oddly enough, there is also no reference in the law to DATE CODES stamped on magazines or even lower receivers. A USGI contract magazine with an obvious date code (as in 12/91) but lacking a serial number or the LEO/GOV'T ONLY marking is also technically legal to own as it is not possible to prove its illegal status by the letter of the law.

You break NO laws by putting more than 10 rounds into a magazine designed for 10 rounds in a different caliber unless you modify the magazine in such a way that it will no longer work in its original application.

That point could be stretched even to the extent that one of the super sized caliber conversions for AR's like the .458 SOCOM might use a 30 round sized magazine to hold 10 rounds. It would be legal to produce 10 round magazines for this specific caliber and yet it would not technically be illegal to take these 10 round .458 magazines, replace the follower, and use them as 30 round .223 magazines...as long as they would still function in the .458 rifle.

Strange but true. There are loopholes to be exploited yet!

CJ

Link Posted: 10/31/2002 7:07:37 AM EDT
There is a lot of good information further down on this board on this topic. The ATF website says that a manufacturer's date code would suffice for the serial number requirement. The requirement that all assault weapons manufactures for LE/Gov't use be stamped was not required / amended till 1995. There are plenty of Colt Ar15's made for LE use that were made in this year without the markings. There was no exception to this rule for magazines. All hi caps manufactured or imported after the 1994 ban was required to be marked with the required markings.
Link Posted: 10/31/2002 7:22:42 AM EDT
The date code is not enough! It must say "FOR LEO OR GOV'T USE ONLY" or whatever the text is. That is the marking "prescribed by the Secretary." This has been discussed over and over. I think even Troy has a standard reply to questions regarding this. If it has that marking it's definitely ILLEGAL. If it doesn't, than it's legal. It could say "MANUFACTURED IN 2000, TOOTHFAIRY USE ONLY" and IT'S STILL LEGAL.
Link Posted: 10/31/2002 7:32:12 AM EDT

Originally Posted By DevL:
Yes its an interesting point. Here is one to ponder. HK says no 12 round .45 USP mags were imported before the ban. However the mags are sold for $90-120 a pop all the time with no date markings on them. I have one right now in my Tactical. So it is "specifically" exempted but no .45 mags were in country before the ban. Am I breaking the law? I just resign myself to the fact they may take my mag if I use it in self defense someday but I know I cant be prosecuted.



Just want to add a couple of things here... HK-USA has stated they never imported any preban USP 45 mags. HK-USA is really nothing more than a warehouse with a few smiths to do warranty repairs. HK-Oberndorf (who actually manufactured that mags) has said nothing about this issue. Anyone with a signed form 6 can legally import mag manufactured before 9/94 - that is the cutoff date for the manufacture, not the import, which can still be done today (notice all the new AK and G3 mags lately?). HK-USA doesn't have do it in order to be legal, though the statement they issued seems to suggest that (which is FOS). There are anecdotal reports of several people who recall seeing the mags for sale before 9/14/94, who specifically recall such as the pistol was not available for sale. The pistol was made available for sale here in early 1995, but production certainly started long before that - there are at least two magazine articles with pictures of production USP .45's bearing a 1994 date code, with late double digit serial numbers. If the pistols were manufactured sometime in 1994, it follows to reason that some quantity of mags were as well. For all anyone knows, HK-O manufactured millions of USP .45 mags prior to the effective date of the AWB. Release of the pistol to the civilian market here could have been held up by numerous things, but the mag design and production could have been done long before this.

Rocko
Link Posted: 10/31/2002 7:35:04 AM EDT

The lack of a serial number...

What if the lack of serial number is due to an individual (ahem) drilling a drain hole on the side of the mag that just happens to be where the serial number/notice was? I didn't see anything in this section forbidding the removal of the serial number, and it explicitly states that if the serial number doesn't exist, the magazine is legal. Is that a valid loophole?z
Link Posted: 10/31/2002 9:08:52 AM EDT
It might be at that. You'd want to investigate general law regarding removal of serial numbers from various items in order to be sure.

The ATF's statement that a date code on a magazine will work in lieu of a serial number is merely an ATF OPINION and the law itself does not state or imply that. The courts MIGHT apply a "reasonable man" viewpoint, or they MIGHT operate on the strictest letter of the written law. Or they might use the ATF's ruling as the basis for their judgements. That'd be a hard race to pick, but I know what the LAW says and it's unequivocal on that particular issue. No serial number, no LEO marking, means no trouble.


CJ

Link Posted: 10/31/2002 9:44:37 AM EDT
While I haven't researched or reviewed this statute to determine whether there are any limitations, exclusions or caveats explicitly enumerated, I will offer this small point of clarification.

It is somewhat misleading to say that "it's not possible to be prosecuted for having it." While it may be unlikely or improbable, it is certainly possible. As noted, the ATF has taken a liberal interpretation that would allow a date stamp to suffice. While the ATF's interpretation does not have the force of law, courts generally defer to the interpretations of administrative agencies unless clearly erroneous. Absent any ATF interpretation the court might feel free to interpret the statute according to its "plain meaning" but reasonable interpretations of the law by administrative agencies are always given a degree of deference and quite often adopted by the courts.

Secondly, note that the statute provides for only a presumption, not an irrebutable presumption. All this presumption really serves to do is to give the possessor the benefit of the doubt where there is no "serial number as described in section 923(i)" A government attorney would almost certainly argue (and if I hadda guess, I would bet he would do so successfully) that a date of manufacture stamped on the magazine would be sufficient to rebut the presumption in favor of the possessor.

I would simply warn those that think that the lack of a 923(i) serial number gets them off the hook that I certainly wouldn't test that theory. I think you'll find that presumption, not preceeded by the word "irrebutable" or "conclusive" gives you only the benefit of the doubt and that where a manufacture date is stamped on the magazine, the Court may find that there isn't much doubt.


Link Posted: 11/3/2002 9:55:38 PM EDT

Originally Posted By cmjohnson:
The lack of a serial number as described in section 923(i) of this title shall be a presumption that the large capacity ammunition feeding device is not subject to the prohibition of possession in paragraph (1).

It's known that some post-ban USGI magazines don't have the LEO/GOV'T ONLY marking on them, and they have been the subject of much speculation. Apparently, if it lacks a serial number, then it's not possible to be prosecuted for having it.



so what you're saying, is that there is nothing to legally prevent a civilian from machining/molding/manufacturing a 30rd AR-15 magazine if he chooses to leave it blank, devoid of any numbers or markings?
Link Posted: 11/3/2002 11:35:35 PM EDT
Link Posted: 11/4/2002 6:06:58 AM EDT
That is true, certainly.

But, it's known that there have been some post-ban M16 magazines made for the military that didn't have the LEO/GOV'T marking on them. If they also lack a serial number, then they would squeak by on the letter of the law.

Any liability for violating the ban would be on the part of the manufacturer, and for all I know they're exempt from having to make such markings as a consequence of the military contract specifications and law. I don't know that, I'm only speculating.

CJ

Link Posted: 11/4/2002 4:04:20 PM EDT

Originally Posted By Troy:
No, it would be illegal for you to manufacture hi-cap mags that are unmarked.

-Troy


I never contested that it was illegal to manufacture hi-cap mags, even if unmarked.

However, the letter of the law implies that you won't be prosecuted for possesing them, because they are assumed to be pre-ban.

Therefore, you would have to actually get caught in the act of making the magazine, and/or have evidence against you other than the magazine itself, because the un-marked magazine is assumed to be pre-ban.
Link Posted: 11/4/2002 5:02:40 PM EDT
Link Posted: 11/4/2002 6:56:44 PM EDT

Originally Posted By Troy:

Originally Posted By voilsb:
However, the letter of the law implies that you won't be prosecuted for possesing them, because they are assumed to be pre-ban.



There is a general presumption, yes, and the burden for proving otherwise IS placed on the prosecution. BUT, if the mags were obviously homemade, you could theoretically still be prosecuted. In real life, I'd say the chances of that were very tiny unless you were selling them commercially.


Therefore, you would have to actually get caught in the act of making the magazine, and/or have evidence against you other than the magazine itself, because the un-marked magazine is assumed to be pre-ban.


Outside of the above, you're correct.

-Troy



okay, that makes sense. of course, i have neither the equipment nor skills necessary to do this. besides, i get issued 30rd M16 mags, and you can buy them pretty inexpensively anyway. of course, i need to buy about four or five more sometime soon, though
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