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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel. |
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3D Printing Guns and the Zip gun Law
So, I've always avoided printing out 3d printed firearms because I was under the impression that they would be considered zipguns because no FFL made them (I am NOT talking about the Liberator. I am referring to other designs.). However, I have heard some people saying that Title I firearms are exempt from tax and therefore do not meet the zipgun specifications.
What do you guys think? |
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I think if you are making a gun that isn't based on an existing design by a licensed manufacturer then you have made a zip gun.
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My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
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#4
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That's what I originally thought, but the other specification for being a zipgun is that there can be no tax paid OR exemption, and it appears that Title I firearms are exempt from taxes by the ATF?
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#5
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Section 4181 and Subchapter F (commencing with Section 4216). The applicable part states: In case any person acquires from the manufacturer, producer, or importer of an article, by operation of law or as a result of any transaction not taxable under this chapter, the right to sell such article, the sale of such article by such person shall be taxable under this chapter as if made by the manufacturer, producer, or importer, and such person shall be liable for the tax. The does not apply to home built guns because there is no transfer by operation of law nor is there a transaction. The other is Subchapter G (commencing with Section 4221). This one is a bit more complicated. The first relevant portion is all this: (a) General rule Under regulations prescribed by the Secretary, no tax shall be imposed under this chapter (other than under section 4121 or 4081) on the sale by the manufacturer (or under subchapter A or C of chapter 31 on the first retail sale) of an article— (1) for use by the purchaser for further manufacture, or for resale by the purchaser to a second purchaser for use by such second purchaser in further manufacture, (2) for export, or for resale by the purchaser to a second purchaser for export, (3) for use by the purchaser as supplies for vessels or aircraft, (4) to a State or local government for the exclusive use of a State or local government, (5) to a nonprofit educational organization for its exclusive use, or (6) to a qualified blood collector organization (as defined in section 7701 (a)(49)) for such organization’s exclusive use in the collection, storage, or transportation of blood, but only if such exportation or use is to occur before any other use. Paragraphs (4), (5), and (6) shall not apply to the tax imposed by section 4064. In the case of taxes imposed by section 4051, [1] or 4071, paragraphs (4) and (5) shall not apply on and after October 1, 2016. In the case of the tax imposed by section 4131, paragraphs (3), (4), and (5) shall not apply and paragraph (2) shall apply only if the use of the exported vaccine meets such requirements as the Secretary may by regulations prescribe. In the case of taxes imposed by subchapter A of chapter 31, paragraphs (1), (3), (4), and (5) shall not apply. In the case of taxes imposed by subchapter C or D, paragraph (6) shall not apply. In the case of the tax imposed by section 4191, paragraphs (3), (4), (5), and (6) shall not apply. (b) Proof of resale for further manufacture; proof of export Where an article has been sold free of tax under subsection (a)— (1) for resale by the purchaser to a second purchaser for use by such second purchaser in further manufacture, or (2) for export, or for resale by the purchaser to a second purchaser for export, subsection (a) shall cease to apply in respect of such sale of such article unless, within the 6-month period which begins on the date of the sale by the manufacturer (or, if earlier, on the date of shipment by the manufacturer), the manufacturer receives proof that the article has been exported or resold for use in further manufacture. (c) Manufacturer relieved from liability in certain cases In the case of any article sold free of tax under this section (other than a sale to which subsection (b) applies), and in the case of any article sold free of tax under section 4001 (c), 4001 (d), or 4053 (6), if the manufacturer in good faith accepts a certification by the purchaser that the article will be used in accordance with the applicable provisions of law, no tax shall thereafter be imposed under this chapter in respect of such sale by such manufacturer. (d) Definitions For purposes of this section— (1) Manufacturer The term “manufacturer” includes a producer or importer of an article, and, in the case of taxes imposed by subchapter A or C of chapter 31, includes the retailer with respect to the first retail sale. (2) Export The term “export” includes shipment to a possession of the United States; and the term “exported” includes shipped to a possession of the United States. (3) Supplies for vessels or aircraft The term “supplies for vessels or aircraft” means fuel supplies, ships’ stores, sea stores, or legitimate equipment on vessels of war of the United States or of any foreign nation, vessels employed in the fisheries or in the whaling business, or vessels actually engaged in foreign trade or trade between the Atlantic and Pacific ports of the United States or between the United States and any of its possessions. For purposes of the preceding sentence, the term “vessels” includes civil aircraft employed in foreign trade or trade between the United States and any of its possessions, and the term “vessels of war of the United States or of any foreign nation” includes aircraft owned by the United States or by any foreign nation and constituting a part of the armed forces thereof. (4) State or local government The term “State or local government” means any State, any political subdivision thereof, or the District of Columbia. (5) Nonprofit educational organization The term “nonprofit educational organization” means an educational organization described in section 170 (b)(1)(A)(ii) which is exempt from income tax under section 501 (a). The term also includes a school operated as an activity of an organization described in section 501 (c)(3) which is exempt from income tax under section 501 (a), if such school normally maintains a regular faculty and curriculum and normally has a regularly enrolled body of pupils or students in attendance at the place where its educational activities are regularly carried on. (6) Use in further manufacture An article shall be treated as sold for use in further manufacture if— (A) such article is sold for use by the purchaser as material in the manufacture or production of, or as a component part of, another article taxable under this chapter to be manufactured or produced by him; or (B) in the case of gasoline taxable under section 4081, such gasoline is sold for use by the purchaser, for nonfuel purposes, as a material in the manufacture or production of another article to be manufactured or produced by him. (7) Qualified bus (A) In general The term “qualified bus” means— (i) an intercity or local bus, and (ii) a school bus. (B) Intercity or local bus The term “intercity or local bus” means any automobile bus which is used predominantly in furnishing (for compensation) passenger land transportation available to the general public if— (i) such transportation is scheduled and along regular routes, or (ii) the seating capacity of such bus is at least 20 adults (not including the driver). (C) School bus The term “school bus” means any automobile bus substantially all the use of which is in transporting students and employees of schools. For purposes of the preceding sentence, the term “school” means an educational organization which normally maintains a regular faculty and curriculum and normally has a regularly enrolled body of pupils or students in attendance at the place where its educational activities are carried on. (e) Special rules (1) Reciprocity required in case of civil aircraft In the case of articles sold for use as supplies for aircraft, the privileges granted under subsection (a)(3) in respect of civil aircraft employed in foreign trade or trade between the United States and any of its possessions, in respect of aircraft registered in a foreign country, shall be allowed only if the Secretary of the Treasury has been advised by the Secretary of Commerce that he has found that such foreign country allows, or will allow, substantially reciprocal privileges in respect of aircraft registered in the United States. If the Secretary of the Treasury is advised by the Secretary of Commerce that he has found that a foreign country has discontinued or will discontinue the allowance of such privileges, the privileges granted under subsection (a)(3) shall not apply thereafter in respect of civil aircraft registered in that foreign country and employed in foreign trade or trade between the United States and any of its possessions. (2) Tires (A) Tax-free sales Under regulations prescribed by the Secretary, no tax shall be imposed under section 4071 on the sale by the manufacturer of a tire if— (i) such tire is sold for use by the purchaser for sale on or in connection with the sale of another article manufactured or produced by such purchaser; and (ii) such other article is to be sold by such purchaser in a sale which either will satisfy the requirements of paragraph (2), (3), (4), or (5) of subsection (a) for a tax-free sale, or would satisfy such requirements but for the fact that such other article is not subject to tax under this chapter. (B) Proof Where a tire has been sold free of tax under this paragraph, this paragraph shall cease to apply unless, within the 6-moth period which begins on the date of the sale by him (or, if earlier on the date of the shipment by him), the manufacturer of such tire receives proof that the other article referred to in clause (ii) of subparagraph (A) has been sold in a manner which satisfies the requirements of such clause (ii) (including in the case of a sale for export, proof of export of such other article). (C) Subsection (a)(1) does not apply Paragraph (1) of subsection (a) shall not apply with respect to the tax imposed under section 4071 on the sale of a tire. (3) Tires used on intercity, local, and school buses Under regulations prescribed by the Secretary, the tax imposed by section 4071 shall not apply in the case of tires sold for use by the purchaser on or in connection with a qualified bus. I see all sorts of things in there from human blood collection to intercity bus tires, but nothing that would apply to homebuilt guns. But I'm open to arguments. The second portion is: No tax shall be imposed under this chapter on any article of native Indian handicraft manufactured or produced by Indians on Indian reservations, or in Indian schools, or by Indians under the jurisdiction of the United States Government in Alaska. Which is interesting, but probably does not apply to most (maybe all) home builds.
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My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#6
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I found this: http://calgunlaws.com/wp-content/upl...fornia-Law.pdf which would make the LIBERATOR not a zipgun.
It implies that there is a possibility that any printed gun would be exempt, but says that the difference is between implied or explicitly granted. Kind of vague. |
#7
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__________________
My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#8
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I have wondered about this
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A certain Don Anderson was charged with Zip gun manufacturer for having semi-auto beltfeds that he had made using parts kits with new sideplates. Is there a Kalifornia law that states it is okay to make a gun based on an existing design?
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I always cheer up immensely if an attack is particularly wounding because I think, well, if they attack one personally, it means they have not a single political argument left. Margaret Thatcher |
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__________________
My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#10
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Smartest thing to do would be to contact a lawyer that is specifically involved in firearms and pay them the money to get real answers. No reason not to spend a little money now then potentially a lot down the road if the information you are given by non lawyers if incorrect.
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#13
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No, it is this:
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__________________
My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#14
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Dude, this is SUCH complete FUD. Quote:
Look at 4182(c)(1). Hard to be specifically exempted from something you're not required to pay in the first place.
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NRA Life Member No posts of mine on Calguns are to be construed as legal advice, which can only be given by a lawyer. |
#15
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a zipgun must meet all those criterera and a smoothbore pistol requires additional taxes to be paid |
#16
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Let's break it down. There is a two prong test here. The gun is a zip gun if it meets the other requirements of 17630, and "[n]o tax was paid on the weapon or device nor was an exemption from paying tax on that weapon or device granted under Section 4181 and Subchapters F (commencing with Section 4216) and G (commencing with Section 4221) of Chapter 32 of Title 26 of the United States." So the first prong is "[n]o tax was paid." Well no tax is paid on home built guns, thanks to subchapter D, so the first prong is satisfied. The second is: "nor was an exemption from paying tax on that weapon or device granted under Section 4181 and Subchapters F (commencing with Section 4216) and G (commencing with Section 4221) of Chapter 32 of Title 26 of the United States." Note the conspicuous absence of D. And no exemption for home built guns in F or G. The one in D is irrelevant. So the second prong is met, because there is no applicable "exemption from paying tax." So no, this is not "FUD" at all, it is fact. If you didn't pay tax on it, and there is no exemption in F or G, then it is a zip gun (where the other requirements are met).
__________________
My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#17
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If you did pay a tax on it, then it would not be a zip gun. That's the opposite of what you said.
__________________
My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#18
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Okay, you've got some points. Thing is, though, the exemptions from the other sections are irrelevant to this instance, because 4181 itself doesn't actually apply to the home builder who is not building (a) >49/year or (b) NFA stuff. True, this particular bit of applicability information is not contained within one of the paragraphs or sections listed in the CA statute ... but there's a lot of other information that's not contained in the CA statute or the paragraphs listed concerning that tax, either. Like how much it is. Where and how to pay it. Other details. 4181 is not a complete package of information on the tax that it imposes, and you have to look at the rest of the applicable sections. 4181 establishes a tax ... 4182 (and a bunch of other sections) provide amplifying information for 4181. The other sections mentioned by the CA statute are general exemptions to paying sales taxes in general.
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NRA Life Member No posts of mine on Calguns are to be construed as legal advice, which can only be given by a lawyer. |
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My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#20
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No, it doesn't make it pointless at all. There's all sorts of things that it applies to. NFA items still require a tax to be paid, regardless of how few someone makes per year. Arguably, the zip gun law was made to restrict pen guns, home-brew machine guns, things that don't otherwise look like firearms, that sort of thing. How do you pay a tax that is specifically not applicable to you? That's a legal impossibility.
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NRA Life Member No posts of mine on Calguns are to be construed as legal advice, which can only be given by a lawyer. |
#21
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You don't. Which is why such homebuilt guns are zip guns, and illegal. That is exactly how they are defined. You are reading word into the statute that just are not there. Wishful thinking.
__________________
My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
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I have to presume, because the intent of the legislature is apparently to prevent any R&D of firearms by average individuals (i.e., those without an FFL), that "based on" takes on its most restrictive possible meaning, and thus means "does not deviate in any way from".
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. |
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The "originally" seems to help a bit. Something "based on" an original design might be ok, even if modified somewhat. But who knows. If they are looking to make an example of someone, any homebuilt gun could be a zip gun, the more variation from the original design, the higher the risk.
__________________
My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. Last edited by Tincon; 04-05-2014 at 4:13 PM.. |
#24
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The "originally designed by" is also where your logic breaks down. By your reading, 1911's are zip guns, because Johnny Browning didn't have an FFL. Neither did Garand. Trapdoor Springfields? Krags? Colt SAA's? All "originally designed" prior to "licensing pursuant to Chapter 44." What about M1 Carbines? Ol' Dave Williams was a convicted murderer, so even if Chapter 44 had existed then he wouldn't have been able to hold a license, so M1 Carbines are zip guns. These were all made before the 4181 tax, and unless they were re-imported from somewhere they meet that criteria as well.
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NRA Life Member No posts of mine on Calguns are to be construed as legal advice, which can only be given by a lawyer. |
#25
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It is therefore only through the mercy of the court that someone is going to avoid being convicted of manufacture of a zip gun if they are charged with that.
__________________
The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. Last edited by kcbrown; 04-05-2014 at 4:43 PM.. |
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__________________
My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#27
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__________________
My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#28
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If it is possible ("possible" here meaning "valid in a legal sense") to interpret it that way, then it follows that it is only through the mercy of the court that the interpretation in question isn't used by it.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. |
#29
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And the cops/DA, but otherwise yes.
__________________
My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#30
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Yes, it does break down here. It's absolutely ludicrous to try and maintain that interpretation. By that logic, virtually every single traditional black powder gun sold is a zip gun, because no FFL is needed to manufacture them and the 4181 tax doesn't apply. Every single Brown Bess? Zip gun! Every single Harper's Ferry musket? Zip gun! Hell, every gun made domestically prior to the GCA becomes a zip gun, and every gun brought in prior to the establishment of licensing for importers as well! This is an absolutely ludicrous interpretation ... but it's what your reading of this law leads straight to.
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NRA Life Member No posts of mine on Calguns are to be construed as legal advice, which can only be given by a lawyer. |
#31
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__________________
My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#32
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A rifled bore excludes a revolver or pistol from being an "AOW" (any other weapon). However I'm not sure if something like the liberator counts as either.
And my preferred reason for concluding that a 3D printed gun is not a zip gun is as follows: California PC 17360 describes a "Zip Gun" as: "17360. As used in this part, "zip gun" means any weapon or device that meets all of the following criteria: (a) It was not imported as a firearm by an importer licensed pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code and the regulations issued pursuant thereto. (b) It was not originally designed to be a firearm by a manufacturer licensed pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code and the regulations issued pursuant thereto. (c) No tax was paid on the weapon or device nor was an exemption from paying tax on that weapon or device granted under Section 4181 and Subchapters F (commencing with Section 4216) and G (commencing with Section 4221) of Chapter 32 of Title 26 of the United States Code, as amended, and the regulations issued pursuant thereto. (d) It is made or altered to expel a projectile by the force of an explosion or other form of combustion." Chapter 32 of Title 26 USC, 4182, (c): "(c) Small manufacturers, etc. (1) In general The tax imposed by section 4181 shall not apply to any pistol, revolver, or firearm described in such section if manufactured, produced, or imported by a person who manufactures, produces, and imports less than an aggregate of 50 of such articles during the calendar year. " That reads to me as "an exemption from paying tax on that weapon or device granted" as described in Cali. zip gun law above. However, this "exemption" in section 4182 does not seem to be directly mentioned in the zip gun law. "No tax was paid on the weapon or device nor was an exemption from paying tax on that weapon or device granted under Section 4181 and Subchapters F (commencing with Section 4216) and G (commencing with Section 4221). So what does that mean? Well I think its okay. Nope I dont have any further argument to that point. But anyways, my argument is that the tax exemption is given and therefore the subsection (c) of the Cali. zip gun law is not met and since all subsections must be met for it to be a zip gun, it is not one. |
#33
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Except of course, that there is no such exemption mentioned in subchapter F or G, and therefore subsection (c) IS met.
__________________
My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. Last edited by Tincon; 04-05-2014 at 8:23 PM.. |
#34
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Section 4181 doesnt have ANY exemptions in it..heck its title is "imposition of tax". So it doesn't really make sense to mention it at all in Cali PC 17360: "26 U.S. Code § 4181 - Imposition of tax There is hereby imposed upon the sale by the manufacturer, producer, or importer of the following articles a tax equivalent to the specified percent of the price for which so sold: Pistols. Revolvers. Firearms (other than pistols and revolvers). Shells, and cartridges." And there are only two sections in Part III of Subchapter D, which is where 4181 is. 4181, and 4182. 4182 being "Exemptions". I'm not saying I like it, but I think the intent of the Cali PC 17360 language is to include 4182. Thats my unofficial, unlegal, amateur opinion and I'm stickin' to it. |
#35
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and for what? A weird way to couple magazines together? Is it really worth it?
__________________
My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#36
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"nor was an exemption from paying tax on that weapon or device granted under Section 4181" Its not like it says "no exemption found in 4181 from the tax imposed in 4181". |
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__________________
My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
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