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Old September 15th, 2006 #10
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Legal Firearms For Prohibited Persons
by Mike Crooker

© 1998 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.


Antique Firearm Exception
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

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.


Cartridge Firing Guns

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.


Replicas of Cartridge Guns

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.


Ascertaining Antique Status

Be certain that what you acquire is an exempt antique. Shady gun show vendors will sell you what they swear is an antique shotgun and you get home only to discover a 1902 patent date stamped into it which could subject you to a big headache should you be caught with it and ATFers find out. This may take research. A good book to have is Flayderman’s Guide to Antique American Firearms and Their Values. In its Smith and Wesson section for example, it gives serial number runs along with manufacture dates. Thus, for example, a .32 S & W Double Action First Model Revolver was made in 1880 and had serial numbers 1 to 30; Second Model, 1880-1882 and serial numbers 31-22172; Third Model, 1882-1883 and serial numbers 22173 to 43405. Therefore any Smith and Wesson .32 D.A. Revolver with a serial number of 43405 or below is a legal antique as it was made between 1880 and 1883. Another example would be the Model 1898 Krag U.S. Military .30 caliber bolt action magazine rifle made between 1898 and 1903, serial numbers 110000 to 480000. According to Flayderman’s, below serial number 152670 "is considered antique under Federal Firearms law." Some guns have the manufacture year stamped into the frames (e.g., Model 1895 Mauser 7mm Military bolt action magazine rifles). Others have no serial numbers at all. These would take further research. Flayderman’s Guide (softcover) is available in most gun shops or from DBI Books, Inc., 4092 Commercial Avenue, Northbrook, IL 60062. One could always put down a $20 deposit to hold a gun, then write to the ATF’s Firearms Technology Branch, 650 Massachusetts Avenue, NW, Washington, DC 20226, asking for a classification decision and giving a complete description. If it comes back antique, then buy it; if not, don’t. If you don’t want ATF knowing your business, you could, for a fee, get an antiquity decision from any number of antique firearms experts. Smith & Wesson, 2100 Roosevelt Avenue, Springfield, MA 01102 will, for $20, give you a letter stating the exact shipping date of any antique firearm made by them, if you provide a description and serial number.

Finally, if you buy a cartridge-firing antique by mail order, you should feel secure that it really is a pre-1899 gun. Mail-order gun dealers are closely watched and if one were selling modern guns to individuals by mail, the ATF would quickly shut them down and prosecute them (not so with fly-by-night gun show vendors). Some sources for mail-order antique guns are:

Dennis Fulmer Antique Firearms
PO Box 226
Detroit Lakes, MN 56502


N. Flayderman and Company
PO Box 2397
Fort Lauderdale, FL 33303


Dale C. Anderson
4 West Confederate Avenue
Gettysburg, PA 17325.

Ammunition For Cartridge Firing Antique Guns

This can be a problem. The same statute that forbids prohibited persons to possess modern guns also prohibits the possession of ammunition for them (a guy in New England just got 20 years for possession of a single 9mm cartridge). The statute and ATF’s implementing regulation at Title 27, Code of Federal Regulations, Section 178.11 defines ammunition as "ammunition or cartridge cases, primers, bullets or propellant powder designed for use in any firearm other than an antique firearm." For muzzleloaders this is not a problem. That paraphernalia is without question designed for use in none other than antiques, as ATF concedes. But when it comes to ammunition cartridges, even obsolete ones, ATF legal counsel takes the absurd position that "designed for use" really means suitable for use or "useable" in a post-1898 gun subject to ATF controls. This has never been upheld in any published court decision, however. Thus, for example, ATF has administratively ruled that .50 caliber Remington Army centerfire cartridges designed for use in antique Remington Rolling Block pistols is modern ammunition because it is shootable in currently made Sharps replica rifles chambered for the .50-70 U.S. Military rifle cartridge. Of course that position is ridiculous, for pistol cartridges are not "designed for use" in rifles chambered for something different. ATF ruled similarly as to .32 S&W and .38 S&W black-powder-loaded centerfire cartridges. Such rulings have not been tested in court, however, and again, such custom made black-powder cartridges are obviously designed for use in antiques only. Modern revolvers made since 1899 chambering these do not use obsolete black powder, hence this writer concludes that they do not constitute ammunition under the federal law definition.

With respect to current factory-made standard rounds loaded with modern smokeless powder, such as .22 rimfire, .32 S&W and .38 S&W centerfire, 7mm Mauser, 12 gauge shotgun, 30-40 Krag, etc., all of which are designed to be used in both pre- and post-1898 guns of those calibers, ATF is probably correct. Take standard 30-40 Krag centerfire ammunition, for example. Currently manufactured by the big ammo makers, it is designed for use in all 30-40 Krag rifles, not just those that are antiques, but also those made between 1899 and 1903.

Obsolete rounds are a different story. There are hundreds of different ones. Cartridges of the World (available in soft cover from DBI Books, at the previously given address) lists, describes, and gives the history of most of them. This author is currently seeking ATF classification as antique ammunition of about 100 of them. Thus far ATF concedes that prohibited persons may possess .58 U.S. Musket centerfire, .58 Carbine centerfire, and .43 Egyptian-Remington centerfire because they have been unable in their extensive research to find any post-1898 guns or replicas that chamber them. (The latter is used in Remington Rolling Block rifles available for $175-200 from Sarco, 323 Union Street, Stirling, NJ 07980; .43 ammo custom-made is available from Buffalo Arms Company, 123 South Third Avenue, Sandpoint, ID 83864; other custom makers of obsolete ammunition are Second Amendment Corporation, PO Box 224, Cortaro, AZ 85652 and Tom’s Brass and Bullet, PO Box 483, Lancaster, CA 93584.) Just to get ATF to concede in writing to these took a lawsuit as to the .43 Egyptian-Remington and the threat of a lawsuit as to the other two. Regarding the rest of the obsolete calibers, it remains to be seen whether the courts will publish a decision upholding ATF’s absurd "usability" interpretation of the phrase "designed for use." It seems doubtful that a federal criminal trial jury would.


A Route Around The Ammunition Problem

Although not mentioned earlier to avoid confusing the reader, an essential proof element of the federal crime of unlawful possession of firearms or ammunition by prohibited persons is the interstate commerce requirement. It must be shown that the possession was "in or affecting commerce." This could be possession during an interstate road trip or on a common carrier such as a train, plane or bus. But 99%% of the time ATF proves this element by showing that the gun or ammunition moved interstate after its manufacture. The U.S. Supreme Court has upheld this flimsy concept and if ATF can show that a modern gun was made by Colt Industries in Connecticut and was shipped thereafter to a dealer in Nebraska many years ago, and you get caught with it in 1998 in Nebraska or any state other than Connecticut, then the commerce element has been proven. (The commerce clause is derived from the U.S. Constitution which itself authorizes the feds to prosecute only four crimes. The clause allows Congress to "regulate commerce between several states and Indian territories." Broadly construed by a corrupt Congress and U.S. court system, this has enabled them to shove 10,000 federal criminal laws down our throats and expand the four federal crimes to include everything from pot possession to illegal campfires.)

Thus, one way to legally circumvent federal gun law is to possess ammunition (or modern firearms for that matter) that have never moved interstate. For those who live in the same states as the big ammo makers, this is not a problem (the big ammo makers are Winchester-Olin, Remington-Peters, Federal, Hansen, CCI, etc.). For those that don’t, there are still solutions. One is to order up from ATF’s Disclosure Branch a computer list of all federally licensed ammunition manufacturers in your state ($25.00). Commercial reloaders must be licensed and are on the list of manufacturers. Acquire your ammunition from such an in-state source through an intermediary and be sure to never let it move in interstate commerce.

Another way is to make your own ammunition. There are books on this subject such as Duncan Long’s Homemade Ammo and Ronald Brown’s Homemade Guns and Homemade Ammo. Homemade ammo that has never moved interstate does not violate federal law (unless possessed on a common carrier or during an interstate road trip). Here’s how you could make your own 12-gauge shotgun shells. According to ATF Publication P 5300.4 the following are excluded from the definition of ammunition or components: shotgun hulls (casings) without primers, lead shot, wads, black powder, and blanks. Take the blanks, disassemble them to get the primers, install the primers into the primerless shotgun hulls, load with black powder, wad, shot, and seal the top with glue. Presto. You’ve just made your own shotgun shells from objects that ATF publications say aren’t even ammunition components. Just don’t move the finished product interstate or the ATF fanatics will try to claim that you "designed them for use" in modern firearms even though you made them for and are using them in a gun show-bought antique shotgun.

State Law

Beware of and research your own state’s law. Many states use the federal definition verbatim and exclude antiques. Many do not, and count even BB guns and marine distress flares as firearms. A call to your state’s Attorney General’s office or local gun rights organization should clarify the situation. Don’t call the police station. They’ll lie and claim that just about any weapon is illegal to have.

Conclusion

This article has dealt with federal law and federal gun control. Research your own state and local law before taking any action. Under federal law you can have any cartridge gun made before 1899 except machine guns or sawed off shotguns. The issue of ammunition for the cartridge guns is a stickier problem and is outlined above. Remember, to violate federal law it must be a firearm or ammunition as defined in Title 18, U.S. Code, Section 921 and Title 27 Code of Federal Regulations, Section 178.11, and must have moved in interstate commerce. If it’s not a firearm, (i.e., is an excluded antique) or if it was homemade or came from an in-state source and never moved interstate, then you can confidently tell the ATF baby burners to go fly a kite and to go back to planning more Waco and Ruby Ridge style massacres. Good luck. l