PDA

View Full Version : Interesting gun/legal question


MP301
07-27-2010, 11:56 PM
Here is one for the legal eagles...(and please site the proper code sections and refrain from answering if you are just guessing :p)


We all know Felons and those with certain Misdemeanor convictions may not have a firearm. So that brings up these questions.

#1 What is the universal legal definition of a firearm?

#2 Can a prohibited person own/posses/control a black powder rifle/pistol or a cross bow?

#3 What weapons can a prohibited person have?This is provided that their court docs dont specifically prohibit items other than firearms.

glockman19
07-28-2010, 9:14 AM
Here is one for the legal eagles...(and please site the proper code sections and refrain from answering if you are just guessing :p)


We all know Felons and those with certain Misdemeanor convictions may not have a firearm. So that brings up these questions.

#1 What is the universal legal definition of a firearm?

#2 Can a prohibited person own/posses/control a black powder rifle/pistol or a cross bow?

#3 What weapons can a prohibited person have?This is provided that their court docs dont specifically prohibit items other than firearms.


What is the universal legal definition of a firearm?

Per the BATF:
Under 26 USCA § 861 (a), firearms is defined as “"a shot gun or rifle having a barrel of less than eighteen inches in length, or any other weapon, except a pistol or revolver, from which a shot is discharged by an explosive if such weapon is capable of being concealed on the person, or a machine gun, and includes a muffler or silencer for any firearm whether or not such firearm is included within the foregoing definition." United States v. Adams, 11 F. Supp. 216, 217 (S.D. Fla. 1935)

Law involving firearms governs the registration of any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; or any destructive device. Title 26, U.S.C., Sec. 5861(d), makes it a Federal crime or offense for anyone to possess certain kinds of firearms which are not registered to him in the National Firearms Registration and Transfer Record. Laws govern who may own firearms, such as prohibiting felons to carry guns, childrens' access to firearms, recordkeeping, transport, and licensing of those dealing in firearms. Federal law makes it unlawful for any person except a licensed dealer to engage in the business of dealing in firearms. Some states have also adopted dealer regulations.

Federal law does not regulate the carrying of concealed weapons. It does, however, provide that persons who have been issued state permits to purchase or possess firearms are exempt from background checks if those permits were issued: 1) within the previous five years in the state in which the transfer is to take place; and 2) after an authorized government official verified that possession of a firearm would not be unlawful. States may adopt laws requiring background checks under such circumstances, however. Most states allow the carrying of concealed weapons by persons who obtain a permit.

The Brady Handgun Violence Prevention Act of 1993 amended the Gun Control Act to require federally licensed firearms dealers - but not private sellers - to perform background checks on prospective handgun purchasers to ensure that the firearm transfer would not violate federal or state law. Prior to the adoption of the Brady Act, gun sales were governed by the “honor system,” i.e., a dealer was permitted to rely upon the representations of a purchaser regarding his or her eligibility to own firearms.

The following is an example of a state law dealing with possession of firearms by felons:

"Ownership or possession prohibited, when; penalty. (a) No person who is a fugitive from justice shall own, possess, or control any firearm or ammunition therefor. (b) No person who is under indictment for, or has waived indictment for, or has been bound over to the circuit court for, or has been convicted in this State or elsewhere of having committed a felony, or any crime of violence, or an illegal sale of any drug shall own, possess, or control any firearm or ammunition therefor.

(c) No person who:

Is or has been under treatment or counseling for addiction to, abuse of, or dependence upon any dangerous, harmful, or detrimental drug, intoxicating compound as defined in section 712-1240, or intoxicating liquor;
Has been acquitted of a crime on the grounds of mental disease, disorder, or defect pursuant to section 704-411; or
Is or has been diagnosed as having a significant behavioral, emotional, or mental disorders as defined by the most current diagnostic manual of the American Psychiatric Association or for treatment for organic brain syndromes;shall own, possess, or control any firearm or ammunition therefor, unless the person has been medically documented to be no longer adversely affected by the addiction, abuse, dependence, mental disease, disorder, or defect.
(d) No person who is less than twenty-five years old and has been adjudicated by the family court to have committed a felony, two or more crimes of violence, or an illegal sale of any drug shall own, possess or control any firearm or ammunition therefor.

(e) No minor who:

Is or has been under treatment for addiction to any dangerous, harmful, or detrimental drug, intoxicating compound as defined in section 712-1240, or intoxicating liquor;
Is a fugitive from justice; or
Has been determined not to have been responsible for a criminal act or has been committed to any institution on account of a mental disease, disorder, or defect; shall own, possess, or control any firearm or ammunition therefor, unless the minor has been medically documented to be no longer adversely affected by the addiction, mental disease, disorder, or defect."

#2 Can a prohibited person own/posses/control a black powder rifle/pistol or a cross bow?
own/posses/control a black powder rifle/pistol NO
a cross bow YES

#3 What weapons can a prohibited person have?This is provided that their court docs dont specifically prohibit items other than firearms

Any and all other non prohibited weapons.

Mssr. Eleganté
07-28-2010, 9:03 PM
That's a tough question to answer. There is no single definition of "firearm" in our country. Glockman19 already posted a condensed definition of "firearm" found in the 1934 National Firearms Act. Here is the long version...

§ 5845. Definitions

For the purpose of this chapter --

(a) Firearm. -- The term "firearm" means (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun; (7) any silencer (as defined in section 921 of title 18, United States Code); and (8) a destructive device. The term "firearm" shall not include an antique firearm or any device (other than a machinegun or destructive device) which, although designed as a weapon, the Secretary finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector's item and is not likely to be used as a weapon.

You can see that under this part of Federal law, only short barreled rifles, short barreled shotguns, machineguns, silencers and destructive devices are considered "firearms". But then "firearm" is defined differently in the 1968 Gun Control Act...

§921(a)(3) The term "firearm" means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.

Both laws exempt "antique firearm" from the definition of "firearm", but the 1934 NFA and the 1968 GCA also each define "antique firearm" differently. Here is the definition from the NFA...

§ 5845(g) Antique firearm. -- The term "antique firearm" means any firearm not designed or redesigned for using rim fire or conventional center fire ignition with fixed ammunition and manufactured in or before 1898 (including any matchlock, flintlock, percussion cap, or similar type of ignition system or replica thereof, whether actually manufactured before or after the year 1898) and also any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.

and here is the definition from the GCA...

§921(a)(16) The term "antique firearm" means -
(A) any firearm (including any firearm with a matchlock,
flintlock, percussion cap, or similar type of ignition system)
manufactured in or before 1898; or
(B) any replica of any firearm described in subparagraph (A) if
such replica -
(i) is not designed or redesigned for using rimfire or
conventional centerfire fixed ammunition, or
(ii) uses rimfire or conventional centerfire fixed ammunition
which is no longer manufactured in the United States and which
is not readily available in the ordinary channels of commercial
trade; or
(C) any muzzle loading rifle, muzzle loading shotgun, or muzzle
loading pistol, which is designed to use black powder, or a black
powder substitute, and which cannot use fixed ammunition. For
purposes of this subparagraph, the term "antique firearm" shall
not include any weapon which incorporates a firearm frame or
receiver, any firearm which is converted into a muzzle loading
weapon, or any muzzle loading weapon which can be readily
converted to fire fixed ammunition by replacing the barrel, bolt,
breechblock, or any combination thereof.

The basic difference is that the NFA has a more strict definitioin, saying that firearms made before 1899 are not "antiques" if they can chamber cartridges that are still available.


Under Federal law, convicted felons can legally posses "antique firearms". ATF admitted this in one of their industry newsletters back in 2005...

http://www.atf.gov/publications/newsletters/ffl/ffl-newsletter-2005-02.pdf

Persons who are otherwise prohibited from possessing firearms may purchase and possess antique firearms...

However, many States, including California, have laws that prohibit convicted felons from possessing "antique firearms". This brings us to California's definition of "firearm"...

12001. (a)(1) As used in this title, the terms "pistol," "revolver," and "firearm capable of being concealed upon the person" shall apply to and include any device designed to be used as a weapon, from which is expelled a projectile by the force of any explosion, or other form of combustion, and that has a barrel less than 16 inches in length. These terms also include any device that has a barrel 16 inches or more in length which is designed to be interchanged with a barrel less than 16 inches in length.
(2) As used in this title, the term "handgun" means any "pistol," "revolver," or "firearm capable of being concealed upon the person."
(b) As used in this title, "firearm" means any device, designed to be used as a weapon, from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion.
(c) As used in Sections 12021, 12021.1, 12070, 12071, 12072, 12073, 12078, 12101, and 12801 of this code, and Sections 8100, 8101, and 8103 of the Welfare and Institutions Code, the term "firearm" includes the frame or receiver of the weapon.
(d) For the purposes of Sections 12025 and 12031, the term "firearm" also shall include any rocket, rocket propelled projectile launcher, or similar device containing any explosive or incendiary material whether or not the device is designed for emergency or distress signaling purposes.
(e) For purposes of Sections 12070, 12071, and paragraph (8) of subdivision (a), and subdivisions (b), (c), (d), and (f) of Section 12072, the term "firearm" does not include an unloaded firearm that is defined as an "antique firearm" in Section 921(a)(16) of Title 18 of the United States Code.
(f) Nothing shall prevent a device defined as a "handgun," "pistol," "revolver," or "firearm capable of being concealed upon the person" from also being found to be a short-barreled shotgun or a short-barreled rifle, as defined in Section 12020.

As you can see above, California law defines "firearm" differently for different parts of the Penal Code. CPC 12001(e) says that "antique firearms" as defined by the Feds in the 1968 GCA are not considered "firearms" in California, but only for the purposes of sale and transfer. That's why we can receive "antique firearms" by mail order here in California without going through a "California licensed dealer". But for all other sections of the California Penal Code, "antique firearms" are still considered firearms. That means carrying them loaded and/or concealed is still a crime in California. It also means that convicted felons can't posses them in California...

12021. (a)(1) Any person who has been convicted of a felony under the laws of the United States, of the State of California, or any other state, government, or country, or of an offense enumerated in subdivision (a), (b), or (d) of Section 12001.6, or who is addicted to the use of any narcotic drug, who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.

ETD1010
07-28-2010, 9:29 PM
I was under the impression that once prohibited (or maybe it was while on probation/parole) you couldn't even have a pocket knife (much less a crossbow). Had a buddy who was on probation and he had to be careful using box cutters at work or something. . .

Staying tuned for the law gurus to respond :popcorn:

dantodd
07-28-2010, 10:07 PM
I was under the impression that once prohibited (or maybe it was while on probation/parole) you couldn't even have a pocket knife (much less a crossbow). Had a buddy who was on probation and he had to be careful using box cutters at work or something. . .

Staying tuned for the law gurus to respond :popcorn:

His probation could well have restricted him from using ANY weapon.

MP301
07-29-2010, 10:04 AM
That's a tough question to answer. There is no single definition of "firearm" in our country. Glockman19 already posted a condensed definition of "firearm" found in the 1934 National Firearms Act. Here is the long version...



You can see that under this part of Federal law, only short barreled rifles, short barreled shotguns, machineguns, silencers and destructive devices are considered "firearms". But then "firearm" is defined differently in the 1968 Gun Control Act...



Both laws exempt "antique firearm" from the definition of "firearm", but the 1934 NFA and the 1968 GCA also each define "antique firearm" differently. Here is the definition from the NFA...



and here is the definition from the GCA...



The basic difference is that the NFA has a more strict definitioin, saying that firearms made before 1899 are not "antiques" if they can chamber cartridges that are still available.


Under Federal law, convicted felons can legally posses "antique firearms". ATF admitted this in one of their industry newsletters back in 2005...

http://www.atf.gov/publications/newsletters/ffl/ffl-newsletter-2005-02.pdf



However, many States, including California, have laws that prohibit convicted felons from possessing "antique firearms". This brings us to California's definition of "firearm"...



As you can see above, California law defines "firearm" differently for different parts of the Penal Code. CPC 12001(e) says that "antique firearms" as defined by the Feds in the 1968 GCA are not considered "firearms" in California, but only for the purposes of sale and transfer. That's why we can receive "antique firearms" by mail order here in California without going through a "California licensed dealer". But for all other sections of the California Penal Code, "antique firearms" are still considered firearms. That means carrying them loaded and/or concealed is still a crime in California. It also means that convicted felons can't posses them in California...

Mssr. Eleganté did a Outstanding job here. This is information that I believed to be true, but didnt have the time to track it down. And that ATF memo is classic and usefull.

Now here is the next question. Would a person convicted of a Misdemenaor DV be able to keep a a black powder rifle/pistol in the home for protection.
Considering they are currently prohibited for life from owning firearms...I will also note that since the prohibition is federal, the definition should be the federal one if that makes a difference, is black poweder an option?

If no (or yes), then please cite why.

Barabas
07-29-2010, 10:31 AM
Where does said prohibited person live?

GrizzlyGuy
07-29-2010, 10:43 AM
Mssr. Eleganté did a Outstanding job here. This is information that I believed to be true, but didnt have the time to track it down. And that ATF memo is classic and usefull.

Now here is the next question. Would a person convicted of a Misdemenaor DV be able to keep a a black powder rifle/pistol in the home for protection.
Considering they are currently prohibited for life from owning firearms...I will also note that since the prohibition is federal, the definition should be the federal one if that makes a difference, is black poweder an option?

If no (or yes), then please cite why.

No they cannot. All the cites you need are in the responses above, but here is the basic logic:

1) A black powder rifle/pistol is a firearm (see federal and state definitions above), it "is designed to or may readily be converted to expel a projectile by the action of an explosive".

2) As a result of the DV conviction, the person has a lifetime firearms prohibition.

See also from here (our DOJ) (http://www.ag.ca.gov/firearms/forms/pdf/prohibcatmisd.pdf):

The following misdemeanor convictions result in a lifetime prohibition:
C Assault with a firearm (§§ 12021(a)(1), 12001.6(a).)
C Shooting at an inhabited or occupied dwelling house, building, vehicle, aircraft, housecar or camper (§§ 246, 12021(a)(1),
12001.6(b).)
C Brandishing a firearm in presence of a peace officer (§§ 417(c), 12001.6(d), 12021(a)(1).)
C Two or more convictions of 417(a)(2) (§ 12021(a)(2).)
* A “misdemeanor crime of domestic violence” (§§ 18 U.S.C. 921(a)(33)(A), 18 U.S.C. 922(g)(9).)

MP301
07-29-2010, 1:30 PM
No they cannot. All the cites you need are in the responses above, but here is the basic logic:

1) A black powder rifle/pistol is a firearm (see federal and state definitions above), it "is designed to or may readily be converted to expel a projectile by the action of an explosive".

2) As a result of the DV conviction, the person has a lifetime firearms prohibition.

See also from here (our DOJ) (http://www.ag.ca.gov/firearms/forms/pdf/prohibcatmisd.pdf):

Ok, but does not also say that Felons are prohobited? ..and yet the ATF memo above states that they may have black powder. Please explain why it would be different for Misd DV ers...

Are not both Felons and Misd. DV ers both technically prohibited for life? So how does it differ that it is ok for felons to have black powder and Misd Dv ers not?

Note: Technically Felons and DVers can get their records expunged, but it doesnt work in CA for the Lautenberg act. DOJ keeps the conviction info for use in later convictions (for sentencing purposes) and ATF says that if it shows up in the system at all, it is deemed to have occured and therefore your prohibited even with an expungment.

This is where the Lautenberg act really screwed the pooch. Although maybe it was intended to just add Misd. DV to the list of prohibited persons, the way it was worded or the way the ATF interprets it, (in states where they dont dump your info after expungement), you are truly screwed for life...unlike those with Felonies...even Felony DV ers....

anthonyca
07-29-2010, 1:49 PM
And to top off the confusion and lies, in the ruling in Skoien en banc, the judge wrote specifically that Californians DV get gun rights back after expungement. Insane.

Before people flame me for defending misdemeanor DV convicts, I just ask those people to research how easy it is to commit misdemeanor DV or be falsely charged.

Have you ever seen that Corona commercial where the wife squirts her husband with lime juice for looking at a pretty woman on the beach? Well as crazy as it seems he could have had her charged with misdemeanor DV in California, and if the DA took it to court, and the jury fallowed california law and jury instructions, she would be convicted. She could never touch a gun or ammo again for life under federal law.

That opens an interesting point. In California there is an exemption to a prohibited person using a gun for self defense, as long as he/she did not have control over the gun for non self defense. IE, a prohibited person was at a party and a violent felony took place, someone told him where there was a gun stored in the house, and be retrieved the gun and shot the felon, there by stopping him from stabbing a guy to death. Is this true with federal prohibited person law?

Ok, but does not also say that Felons are prohobited? ..and yet the ATF memo above states that they may have black powder. Please explain why it would be different for Misd DV ers...

Are not both Felons and Misd. DV ers both technically prohibited for life? So how does it differ that it is ok for felons to have black powder and Misd Dv ers not?

Note: Technically Felons and DVers can get their records expunged, but it doesnt work in CA for the Lautenberg act. DOJ keeps the conviction info for use in later convictions (for sentencing purposes) and ATF says that if it shows up in the system at all, it is deemed to have occured and therefore your prohibited even with an expungment.

This is where the Lautenberg act really screwed the pooch. Although maybe it was intended to just add Misd. DV to the list of prohibited persons, the way it was worded or the way the ATF interprets it, (in states where they dont dump your info after expungement), you are truly screwed for life...unlike those with Felonies...even Felony DV ers....

MP301
07-29-2010, 2:32 PM
And to top off the confusion and lies, in the ruling in Skoien en banc, the judge wrote specifically that Californians DV get gun rights back after expungement. Insane.

Before people flame me for defending misdemeanor DV convicts, I just ask those people to research how easy it is to commit misdemeanor DV or be falsely charged.

Have you ever seen that Corona commercial where the wife squirts her husband with lime juice for looking at a pretty woman on the beach? Well as crazy as it seems he could have had her charged with misdemeanor DV in California, and if the DA took it to court, and the jury fallowed california law and jury instructions, she would be convicted. She could never touch a gun or ammo again for life under federal law.

That opens an interesting point. In California there is an exemption to a prohibited person using a gun for self defense, as long as he/she did not have control over the gun for non self defense. IE, a prohibited person was at a party and a violent felony took place, someone told him where there was a gun stored in the house, and be retrieved the gun and shot the felon, there by stopping him from stabbing a guy to death. Is this true with federal prohibited person law?

Yeah, what I have discovered is that most people have no clue. Mention something politically incorrect like DV and they automatically assume "wife Beater" and think they should be hung by the neck until dead. If it were only those that actually beat their spouses that were convicted of Misd. DV, that might be one thing. But that is not the case by long shot.

Since the law says that law enforcement in CA MUST arrest (no descretion like there is with many other things), etc. and that one doesnt actually have to lay so much as a hand on the other to qualify for DV, then like so many other things we deal with... it is twisted and abused.

Example. I know an ex marine who's wife (they were going through a divorce)was cheating on him. Not just cheating on him, but rubbing it in his face. She showed up at his work, in his car, to twist the knife in front of all of his friends. He kept his cool as long as he could.
Then, after so much beratement in front of his co workers, followed by her promise that he would never see his son again yada yada,
he puched the window on the passenger side of HIS car and broke it. didnt injure her, just the wondow.

Long story short. It resulted in a MISD. DV. F'ed-for-life-prohibited-person.

Is that fair? No.


Back on Topic...\


12001. (a)(1) As used in this title, the terms "pistol," "revolver," and "firearm capable of being concealed upon the person" shall apply to and include any device designed to be used as a weapon, from which is expelled a projectile by the force of any explosion, or other form of combustion, and that has a barrel less than 16 inches in length. These terms also include any device that has a barrel 16 inches or more in length which is designed to be interchanged with a barrel less than 16 inches in length.
(2) As used in this title, the term "handgun" means any "pistol," "revolver," or "firearm capable of being concealed upon the person."
(b) As used in this title, "firearm" means any device, designed to be used as a weapon, from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion.
(c) As used in Sections 12021, 12021.1, 12070, 12071, 12072, 12073, 12078, 12101, and 12801 of this code, and Sections 8100, 8101, and 8103 of the Welfare and Institutions Code, the term "firearm" includes the frame or receiver of the weapon.
(d) For the purposes of Sections 12025 and 12031, the term "firearm" also shall include any rocket, rocket propelled projectile launcher, or similar device containing any explosive or incendiary material whether or not the device is designed for emergency or distress signaling purposes.
(e) For purposes of Sections 12070, 12071, and paragraph (8) of subdivision (a), and subdivisions (b), (c), (d), and (f) of Section 12072, the term "firearm" does not include an unloaded firearm that is defined as an "antique firearm" in Section 921(a)(16) of Title 18 of the United States Code.
(f) Nothing shall prevent a device defined as a "handgun," "pistol," "revolver," or "firearm capable of being concealed upon the person" from also being found to be a short-barreled shotgun or a short-barreled rifle, as defined in Section 12020.


Interesting, so until you load it, its not a firearm. So if this is correct, a Felon or Misd. Dv er is good to go with a black powder gun and allk of the components right up until the time they load it? Interesting

Mssr. Eleganté
07-29-2010, 8:40 PM
...Interesting, so until you load it, its not a firearm. So if this is correct, a Felon or Misd. Dv er is good to go with a black powder gun and allk of the components right up until the time they load it? Interesting

No, no no! Reread the last paragraph of my first post.

Notice that the exemption you bolded only applies to Sections 12070, 12071, and paragraph (8) of subdivision (a), and subdivisions (b), (c), (d), and (f) of Section 12072. Those are the sections of the California Penal Code that cover sales and transfers of firearms. So that exemption just says that an unloaded "antique firearm" is not a firearm for the purposes of sales and transfers. You don't need to become a "California licensed dealer" to sell them on a regular basis. You don't need to transfer them through a "California licensed dealer". And "California licensed dealers" who sell them don't need to DROS them or make you wait 10 days. For all other parts of the California Penal Code an "antique firearm" is still considered a firearm, even if it is unloaded.