Sunday, June 27, 2010

Legal Firearms For Prohibited Persons by Mike Crooker

Unknown to most persons, except lawyers and those ATF victims incarcerated in federal prisons, it is a federal crime for the following nine categories of persons to possess firearms: persons who have been convicted of a crime potentially punishable by more than a year (a bad check conviction 40 years ago can suffice), fugitives, users of drugs or marijuana, mental defectives, illegal aliens, dishonorable dischargees, renouncers of citizenship, those subject to domestic restraining orders, and those convicted of misdemeanor domestic crimes of violence (threatening your wife 20 years ago can be enough). Title 18, U.S. Code, Sections 922(g) and 924(e) mandate a penalty of up to 10 years, and in the case of persons previously convicted three or more times of drug crimes and certain others, a mandatory 15 years to life with no parole. (Someone 50 years old convicted at age 19 of, say, three pot sales, thereafter becoming a model citizen and caught with a gun hunting ducks 30 year later is an Armed Career Criminal subject to the enhanced 15 years to life.) Any person purchasing a modern handgun, rifle or shotgun from a retailer must sign an ATF Form 4473 swearing that he is not in one of these categories. Lying constitutes yet another federal crime.      There are several tens of millions of Americans that fit one of the above prohibited categories. There are also over 10,000 such persons in federal prison for illegal gun possession, including over 2,000 with the enhanced 15-life penalty. Horror stories abound and I can think of two published decisions off the top of my head in which people were sentenced to 15+ years: a duck hunter caught in hip waders with duck decoys and a shotgun and a man caught with a Model 1908 Colt .25 caliber automatic pistol with no ammo, no clip, no grips, and a slide rusted closed.

     Federal law exempts antique firearms from all gun controls. Title 18, U.S. Code, Section 921(a)(16) defines antique firearms as all guns made prior to 1899 as well as all muzzleloaders made anytime, and replicas of pre-1899 cartridge firing guns made anytime, provided that such replica uses cartridges "not readily available in the ordinary channels of commercial trade." (Note: Cartridge firing machine guns and short-barreled shotguns are still illegal regardless of when made, under Section 5861 of the IRS Code, Title 26, U.S. Code.)

     Muzzleloaders (so-called black powder guns loaded from the end where the bullet exits) are legal, whether original or replica, regardless of the date of manufacture. You can buy them by mail order. The most practical to own for self-defense are the so-called cap and ball revolvers originally made between 1840 and 1870 and used by Wyatt Earp and other gunslingers of the West. Numerous companies make and sell replicas of these six-shooters. Many can be had for $100 or slightly less. A good choice would be the .44 caliber Model 1860 Army. To use them you need powder, lead balls, wads, and percussion caps, all readily available in gun shops and sporting goods stores.

     Between 1858 and 1898 millions of cartridge firing guns were made by Smith & Wesson, Colt, Iver Johnson, Remington and numerous others in such calibers as .22, .32, .38, .44, .45 and many dozens of others. Believe it or not, these original guns (totally exempt from federal gun controls) are so abundant that they can be had for $150 or less at any of the dozens of gun shows held in this country from coast to coast on any given weekend. At nearly any gun show you can pick up a very workable .32 or .38 S & W revolver, a 12-gauge double barrel shotgun, a 7mm German Mauser bolt action military rifle, and many others for less than $150, all made prior to 1899 and legal for anyone to possess.

     This third antique category will not be dealt with in this article simply because this author does not know of any modern made replicas of pre-1899 cartridge firing guns that use ammunition cartridges not readily available in the ordinary channels of commercial trade. ATF claims that they have no list of guns in this category and any request for antiquity classifications of such will be dealt with on a case by case basis.
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10 comments:

Sharon Secor said...

Very interesting post, great info. I'm making a shopping list already!

Tracy said...

You and me both.
Actually, one is quite well armed with a repro cap and ball revolver and either a pre-'98 Mauser bolt action, or a repro muzzle loading double barrel shotgun; the latter of which can even have barrels shorter than 18", unlike cartridge shotguns.

KenK said...

Don't forget just because it's legal to ATF doesn't mean it's legal. None of those exceptions you mentioned in your article apply in Michigan. An old 1870 C&B pistol needs to be licensed and registered just like a brand new Glock. Or jail. I think we're getting near the point where we can game the system to stay on the right side of the law anymore.

Tracy said...

You are absolutely correct, Ken: state laws may apply, so be sure to check yours. Also, just because it isn't classified as a firearm by federal law doesn't mean local and state laws prohibiting the bearing of arms won't apply to you.
As for "gaming" the system, the cops and prosecutors get away with that, but we can't. They keep expanding the list of prohibited persons, and trying to get as many people as possible on that list; and they will never stop until the citizenry is effectively disarmed. In some parts of the US, it already is.

danoh said...

If there is a Conflict, Federal law supercedes unless there is a precedent or test case. If not in MI, then another state is used. Check Westlaw. Even If MI law say "this" or "that", unless it has been upheld in court, it's Not legal under section IV of the constitution. Just because someone went to jail over it only means they had poor defense--I found this out on my own. I'm not a lawyer, but an atty has verfied what I found:

In my state, AZ, there are No test cases or precendents. I dug thru 15 pages of 30 of WestLaw precedents in other states, so far I haven't found one in another state, either. The state def. of a firearm is blurry. It seems to include All guns, even antiques; yet contradicts itself in other codes as Curios and Relics (Over 50 years old and also so designated on the ATF's list) as "not firearms". Since the AZ definition of a "weapon" uses the words "includes firearms"; it is not saying All firearms are weapons. It is simply not Excluding firearms. The definition is: " something Designed with lethal intent..". If you can prove in court an old .22 rifle wasn't designed to kill Humans; that's it. The law isn't even saying C & R's and antiques are firearms--it allows Treasury (ATF) definitions to hold on these. So, if you are a felon accused of "possesion of a weapon"; the whole charge drops if it's a C & R or Antique.

Double-check MI law on this--google the MI revised statutes and look up "antique" and "C & R". Look under All statutes; not just criminal. I'll bet, tucked away in another code, is an exception of C & R's and Antiques. Just because cops Say it means Nothing. See Mr. Crooker's book--they lie, pass rumors, say what their boss Told them to say, etc, without investigating. They even Arrest on flimsy statutes like this--they really can't but it will take a good Lawyer and a very public class action suit to stop them.

Tracy said...

Good information, danoh. Thanks for your contribution.

danoh said...

Thnaks. I am working on this Right now to my defense.

I don't believe all the "stories" Mr. Crooker mentions in his book. Is he the Micheal Crooker in the news, facing 15 years for Ricin?

In Most cases; imple possession of a "weapon by prohibited possesor" Is 4 years; Not 15. 10 years for One 9mm round? I don't believe this, either. More like 1 1/2 years. And, the guy with the 1908 automatic that didn't fire--in most states, guns not "readily restorable to firing condition" are excepted from being prohibited weapons. Also, possibly, a magazine was impossible to get in normal commerial traffic. If, say,it takes mail-order thru an antique supply or something; not simply at any gun shop, there may be an exception there, too. A 1908 is definitely a C & R; I either think this story is untrue or someone depended on a Public Defender..

Of course, defense has to "prove" this wasn't "easily" restorable. This is very blurry--it isn't defined in AZ statutes at all. I Think All laws need a definition to be legal. In WestLaw , I saw a case of a kid who spent 2 Hours turning an old bolt into a firing pin, using a drill and file. The court viewed that as "easily"...?? It's up to the court and how Good your defense atty. is.

danoh said...

It's not a federal crime for a prohibited person to possess--it's a Local, a State crime. It's a federal crime to Knowingly Transfer to a prohibited possessor. Mr. Crooker is wrong. There are not:"10,000 persons in federal prison for possession.." There are Probably 10,000 in State prisons for this. A Misdemeanor does Not abrogate your gun rights--he is wrong there, too. It must be a felony punishable by more than one year in prison.(and not rights restored.) Not what the punishment was, but what it Could have been. This is a common stumbling block, too. Fed. pen is Disneyland compared to State pens--some are awful. Even with Fed, funding, no less. Fed. pens are like a College Dorm.

References: Go to any gun show/gun shop and ask them or check the federal transfer form 4473. ARS Statutes code 13. Fed. codes.

Tracy said...

What kind of "1908 automatic?" If you mean a P'08 that has been demilled or something like that, I would agree. But if you mean anything full-auto, I wouldn't be so sure. ATF says that merely having a bent piece of sheetmetal with a hole drilled in a certain area, for example, is a machine gun. And if you go to the range with a Mini-14, better wear pull-on boots because a shoelace is a machine gun. As crazy as it sounds, that is their official stance. I have read the letter on it.

danoh said...

The 1908 Automatic pistol mentioned in Mr. Crooker's book "with the slide rusted shut". There were no full auto machine pistols in 1908, except maybe a Mauser auto. He didn't have one of these--they have a bolt, not a slide. They are also very Rare and Valuable, too; he wouldn't carry it around. I wasn't discussing trigger flickers.