Has anyone ever been prosecuted for 922(r)?

[GJJ]

Has anyone ever been prosecuted for this law? Also, it seems like it deals with the MANUFACTURE not POSSESSION. So, once the changes have been made, there does not seem to be a prohibition on having the weapon.

Any legal experts?????

The Imported Parts Law(1990)
178.39 otherwise known as 922(r) 10 Foreign parts law on semiauto Rifles & Shotguns

http://www.atf.treas.gov/regulations/27cfr178.html

Sec. 178.39 Assembly of semiautomatic rifles or shotguns.
(a) No person shall assemble a semiautomatic rifle or any shotgun using more than 10 of the imported parts listed in paragraph (c) of this section if the assembled firearm is prohibited from importation under section 925(d)(3) as not being particularly suitable for or readily adaptable to sporting purposes.
(b) The provisions of this section shall not apply to:
(1) The assembly of such rifle or shotgun for sale or distribution
by a licensed manufacturer to the United States or any department or agency thereof or to any State or any department, agency, or political subdivision thereof; or
(2) The assembly of such rifle or shotgun for the purposes of
testing or experimentation authorized by the Director under the
provisions of Sec. 178.151; or
(3) The repair of any rifle or shotgun which had been imported into or assembled in the United States prior to November 30, 1990, or the replacement of any part of such firearm.
(c) For purposes of this section, the term imported parts are:

(1) Frames, receivers, receiver castings, forgings or stampings
(2) Barrels
(3) Barrel extensions
(4) Mounting blocks (trunions)
(5) Muzzle attachments
(6) Bolts
(7) Bolt carriers
(8) Operating rods
(9) Gas pistons
(10) Trigger housings
(11) Triggers
(12) Hammers
(13) Sears
(14) Disconnectors
(15) Buttstocks
(16) Pistol grips
(17) Forearms, handguards
(18) Magazine bodies
(19) Followers
(20) Floorplates

[69Mach1]

If anyone is ever charged with 922r violation(s), and it's the only charge(s), that would be one weak case. The BATF would also have a lot of explaining to do. Just exactly what do they mean by "ability to accept a flash hider". Does that mean a threaded barrel, or an actual flash hider installed. What constitues (legal def.) a flash hider?

Is there a 922r violation on the ability to accept military magazines? Then why is the PSL legal. It takes a 10 round magazine, but the rifle is actually used by some militaries, so it'a a military magazine. How come they approved the FN FS2000 (if it's 100% imported) which accepts M16 magazines?

They (BATF) also kept changing the rules, so it made it harder to figure out what and when something was legal. And what the hell is a "sporting firearm"?

[GJJ]

This law does not seem to apply to possession. Only manufacture. So, having a rifle with the right number of US parts does not appear to be illegal.

[gose]

If anyone is ever charged with 922r violation(s), and it's the only charge(s), that would be one weak case. The BATF would also have a lot of explaining to do. Just exactly what do they mean by "ability to accept a flash hider". Does that mean a threaded barrel, or an actual flash hider installed. What constitues (legal def.) a flash hider?
Is there a 922r violation on the ability to accept military magazines? Then why is the PSL legal. It takes a 10 round magazine, but the rifle is actually used by some militaries, so it'a a military magazine. How come they approved the FN FS2000 (if it's 100% imported) which accepts M16 magazines?
They (BATF) also kept changing the rules, so it made it harder to figure out what and when something was legal. And what the hell is a "sporting firearm"?

What are you talking about?

You might be confusing their definition of an assault weapon with "not being particularly suitable for or readily adaptable to sporting purposes." They're pretty much the same, but AFAIK, the ATF never released any official document outlining exactly what the phrase really means.

[SI-guru]

Here is a good link on info :

http://www.recguns.com/Sources/IIH2.html

The July, 1989 ATF Report, which explains why ATF decided that
military style semi-auto rifles were "unsporting" and thus
prohibited from importation (for sale to civilians, anyway), lists
the criteria they considered important:

1. "Military configuration", which consists of: accepting a
detachable magazine, having a folding or telescoping stock, having
a pistol grip that protrudes conspicuously beneath the stock,
ability to accept a bayonet, having a flash suppressor, having a
bipod, having a grenade launcher, and having night sights.
2. Whether the gun is a semiautomatic version of a machine gun.
3. Whether the rifle is chambered for a cartridge shorter than 2.25
inches.

The fact that it has or doesn't have a particular feature will
not determine its suitability for import. The report says the
rifle must be judged in its totality to see if it is more like a
sporting rifle type, or a semiautomatic assault weapon type.
While the report does not include threaded muzzles as a feature of
the semiautomatic assault weapon type (which is what they were
banning, a type, not just particular rifles, that individually
might have a sporting use) that is clearly a no-no as of this
instant, at least on rifles using a detachable magazine. Likewise
the report indicates that the semiautomatic assault weapon type
uses a detachable magazine, however ATF has issued decrees related
to the SKS with fixed magazine, as well as with a detachable
magazine.

From the above, and from what semiautomatic rifles allowed for
import actually look like, the following general rules can be
gleaned:

If the gun is a rifle of the sort subject to sec. 922(r)
(imported, semi-auto) that accepts a detachable magazine it may not
have:

* pistol grip (it may have a thumbhole stock)
* flash hider or threaded muzzle (a sporting muzzle brake is OK)
* bipod (a sporting bipod is probably OK, one that clamps on, or
attaches by a swivel stud, not permanently attached to the gun)
* bayonet lug
* folding or collapsing stock
* night sights (luminescent sights)
* grenade launcher
* threaded muzzle (except permanently covered by a nut, or
something similar)
* high capacity magazine (it may have a sporting 5 or 8 round mag)

Also, while I am not sure if possession is illegal or not, it will be subject to confiscation.

I am not too sure about the FS-2000 but the muzzle device is pinned and someone called the BATF and was told if it is unpinned, it will be consider a violation of the 922(r).

[gose]

"The fact that it has or doesn't have a particular feature will not determine its suitability for import. The report says the rifle must be judged in its totality to see if it is more like a sporting rifle type, or a semiautomatic assault weapon type. "

Is the key, basically they're saying that they don't have any strict guidelines and it's on a case-to-case basis... Which is good for them, because they can "rule" that anything they don't like is non-sporting, but it's bad for us, because if there are no strict guidelines, it's hard to complain and it will be your word (it's a sporting rifle) vs theirs (it's not).

[SI-guru]

When in doubt, assume it is non-sporting and use the "no more than 10 parts" rules, right ?

Or if you are in a free state, make it a NFA SBR.

[MrTuffPaws]

Here is a good link on info :

http://www.recguns.com/Sources/IIH2.html

The July, 1989 ATF Report, which explains why ATF decided that
military style semi-auto rifles were "unsporting" and thus
prohibited from importation (for sale to civilians, anyway), lists
the criteria they considered important:

1. "Military configuration", which consists of: accepting a
detachable magazine, having a folding or telescoping stock, having
a pistol grip that protrudes conspicuously beneath the stock,
ability to accept a bayonet, having a flash suppressor, having a
bipod, having a grenade launcher, and having night sights.
2. Whether the gun is a semiautomatic version of a machine gun.
3. Whether the rifle is chambered for a cartridge shorter than 2.25
inches.

The fact that it has or doesn't have a particular feature will
not determine its suitability for import. The report says the
rifle must be judged in its totality to see if it is more like a
sporting rifle type, or a semiautomatic assault weapon type.
While the report does not include threaded muzzles as a feature of
the semiautomatic assault weapon type (which is what they were
banning, a type, not just particular rifles, that individually
might have a sporting use) that is clearly a no-no as of this
instant, at least on rifles using a detachable magazine. Likewise
the report indicates that the semiautomatic assault weapon type
uses a detachable magazine, however ATF has issued decrees related
to the SKS with fixed magazine, as well as with a detachable
magazine.

From the above, and from what semiautomatic rifles allowed for
import actually look like, the following general rules can be
gleaned:

If the gun is a rifle of the sort subject to sec. 922(r)
(imported, semi-auto) that accepts a detachable magazine it may not
have:

* pistol grip (it may have a thumbhole stock)
* flash hider or threaded muzzle (a sporting muzzle brake is OK)
* bipod (a sporting bipod is probably OK, one that clamps on, or
attaches by a swivel stud, not permanently attached to the gun)
* bayonet lug
* folding or collapsing stock
* night sights (luminescent sights)
* grenade launcher
* threaded muzzle (except permanently covered by a nut, or
something similar)
* high capacity magazine (it may have a sporting 5 or 8 round mag)

Also, while I am not sure if possession is illegal or not, it will be subject to confiscation.

I am not too sure about the FS-2000 but the muzzle device is pinned and someone called the BATF and was told if it is unpinned, it will be consider a violation of the 922(r).

Awesome. Thanks for posting that.

Sounds like an M59 SKS with a Tapco T6 stock, as long as it kept the stock mag, would not be in violation, nor would adding a thumb hole stock to a Saiga (filled of course to make it CA legal).

[xenophobe]

There is no crime for possession of a firearm that is not 922(r) compliant. However, the rifle could be considered contraband and might be confiscated. I have never heard of this happening though.

The law was passed to limit manufacturers, not end purchasers. Home builders were not really considered at the time, because nobody was putting AKs together out of parts at this point, and there were no sources of stripped receivers.... only large companies like Century and Armory USA were doing builds at the time, if memory serves correctly.

I am not aware of any prosecutions of 922(r) violations, ever.

[anotherone]

I am not aware of any prosecutions of 922(r) violations, ever.

I highly doubt any LEO gives a crap whether an SKS is 922(r) compliant or not unless they are really out to nail someone and don't have any other charges to arrest them on.

[Pvt. Cowboy]

Has anyone ever been prosecuted for this law? Also, it seems like it deals with the MANUFACTURE not POSSESSION. So, once the changes have been made, there does not seem to be a prohibition on having the weapon.

I've had opinions on this particular matter for some time. Bear with me, I'm not *yet* an attorney. Here are some points I'd like to throw out:

1. The construction by a private individual of a non 922(r) compliant firearm is the same as if the original importer did it unlawfully. That means that if Joe Blow takes a "Post Ban" '91 vintage thumbhole Maadi and adds a folding stock and flash hider to it without adding/changing/retrofitting the requisite number of domestic parts, it's the same violation as if CLAYCO did it after the configuration was approved by BATFE long ago. I believe that in similar cases against firearm importers/manufacturers, these violation(s) were rectified by as little as a simple notification letter all the way up to seizure of contraband, depending on circumstances.

2. The BATFE will know the correct configuration in which the imported rifle covered by 922(r) was originally authorized for sale.

3. The BATFE does not regulate what constitutes a domestic part, has no actively-maintained reference library of approved domestic parts, and to my knowledge has never offered expert testimony specifically regarding this issue benefiting a prosecutor in any firearms case.

4. The larger issue of what constitutes a 'domestic part' has long been argued completely outside of the realm of firearms laws, and there's quite a lot of it established. Most of it focuses under the Commerce Clause, a sixteen word passage in the Constitution of the United States that has been subject of intense political debate for quite some time. It's vague enough these days to be difficult to understand and enforce, and on the other hand conveniently vague enough to mean whatever Uncle Sam wants it to mean. Consider the following: "This widget was made in Ohio from an imported Chinese steel billet that was itself made from American scrap metal sold to Beijing two years ago. Does the fabrication of the widget in Ohio make it 'domestic', or is it a Chinese product? Hey wait, our metallurgist Dr. von Knowitall says that data from his nuclear accelerator proves that the atomic structure of the steel in this widget is unequivocally that of Bethlehem steel from Pennsylvania". OK, so it's a mess of legal spaghetti. How does the law address it?

The reach of the Commerce Clause (and, as a result, the issue of 'Domestic Parts') as it pertains to private individuals was addressed in 'US vs. Morrison' and it's subsequent four-pronged test covered again here in the recent firearms case 'United States vs. Stewart' (.PDF) .

Let me point you to two key paragraphs of 'US vs. Stewart' that stand out. Here's the first one where the court addresses the reach of the US Constitution's Commerce Clause as far as private individuals are concerned:

We start by considering the first and fourth prongs of the Morrison test, as we have deemed them the most important. See McCoy, 323 F.3d at 1119. The first prong is not satisfied here. Possession of a machinegun is not, without more, economic in nature. Just like the statute struck down in Lopez, section 922(o) “is a criminal statute that by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” Lopez, 514 U.S at 561. Unlike in Wickard v. Filburn, 317 U.S. 111 (1942), where growing wheat in one’s backyard could be seen as a means of saving money that would otherwise have been spent in the open market, a homemade machinegun may be part of a gun collection or may be crafted as a hobby. Or it may be used for illegal purposes. Whatever its intended use, without some evidence that it will be sold or transferred—and there is none here—its relationship to interstate commerce is highly attenuated.

Moreover, the regulation itself does not have an economic purpose: whereas the statute in Wickard was enacted primarily to control the market price of wheat, id. at 115, there is no evidence that section 922(o) was enacted to regulate commercial aspects of the machinegun business. More likely, section 922(o) was intended to keep machineguns out of the hands of criminals—an admirable goal, but not a commercial one.

... and this one, where the 9th Circuit Court stabbed 922(o) in the gut:

This case fails Morrison’s other requirements as well.

As we stated earlier, section 922(o) contains no jurisdictional element anchoring the prohibited activity to interstate commerce. Congress also failed to make any legislative findings when it enacted the statute. While neither Lopez nor Morrison requires Congress to make findings every time it passes a law under its Commerce Clause power, the Supreme Court did note the importance of findings where—as here—such findings would “enable [a court] to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye.” Lopez, 514 U.S. at 563.

Read that again substituting the phrase 'Firearms component' every place that you read 'Machinegun'.

In 2007, I would imagine that the US Supreme Court's opinion on the reach of the Commerce Clause into regulating commerce is still as it was in the Rehnquist Court, and perhaps even more so now, meaning that the Commerce Clause can only regulate significant and substantial actions and trade that affect interstate and international commerce. I don't think that the US Department of Justice or the BATFE can or would make a solid case that one single individual's 'Post Ban' rifle fitted with 'Pre Ban' parts in an incorrect manner constitutes a significant incident affecting interstate commerce.

5. For those who didn't want to read all of point number 4, here's the short version: Considering that there are numerous manufacturers of entirely domestic firearms parts/components (and more manufacturers springing up every day) that are completely indistinguishable from the original item as sold in a rifle covered by the 1989 Assault Weapons ban, I don't see how anyone can convince a court to any degree that this Hk-91 hammer/sear/magazine floorplate is contraband in a 922(r) rifle but this one over here that is an exact duplicate in fit and finish is okey-dokey and good to go on the 'Ten Domestic Parts' rule of 922(r). It used to be that you could tell a S&W SW91 hammer from the original German Hk-91 part, but nowadays any competent machinist with a CNC milling machine and CADCAM can make a copy of anything you hand them, perfectly replicated down to the proper Hk finish. What about modification of the original foreign part? Would just stamping 'GO USA!' on your Chinese sear satisfy the court that the part is 'domesticized' enough to satisfy 922(r)?

6. Regarding point #5, that doesn't mean that BATFE won't try to run you through the wringer if they ever come across a firearm that they believe to be not 922(r)-compliant. As usual, the paranoia of the law abiding is law enforcement's greatest weapon to use against them.

7. On that note, when's the last time you ever heard of BATFE weighing and measuring someone's Walther PPK/S to see if it violates the 1968 GCA? Realistically, I think the reason we haven't heard of any high profile cases about individuals getting hit with charges stemming from violating 922(r) is because the BATFE might consider it a frivolous action under this administration. They ARE interested in collecting up the imported AK-clone receivers that began life as a machinegun they let slip by, but are they also so diligent in going after a single private citizens who unknowingly replaced his thumbhole 'sporter' stock with a $0.98 plastic pistol grip?

8. As a reminder, conviction of violation of 922(r) is 10 years in a Federal Penitentiary and/or a $250,000 fine. Never place yourself in a position that you will have your liberty taken from you. If you're smart enough to understand the rules, you're smart enough to obey them.

[Pvt. Cowboy]

When in doubt, assume it is non-sporting and use the "no more than 10 parts" rules, right ?

Or if you are in a free state, make it a NFA SBR.

SBRs must still comply with 922(r).

Oh yes, yes they must.

[SemiAutoSam]

I was repairing the rifle after a horrible accident with a chop saw prior to its delivery into my hands.

(3) The repair of any rifle or shotgun which had been imported into or assembled in the United States prior to November 30, 1990, or the replacement of any part of such firearm.

[monkey]

SBRs must still comply with 922(r).

Oh yes, yes they must.

This is well covered territory and you are incorrect. 26 USC 925(d)(3) is the section that establishes the import prohibitions for firearms: 1) NFA firearms, 2) military surplus firearms, 3) any firearm not suitable or readily adaptable to sporting purposes. USC 922(r) establishes the prohibition on assembling specifically a "Non-Sporting" firearm using all imported parts, it does not specifically prohibit the assembly of an NFA firearm using imported parts. For purposes of 922r, "Non-Sporting" and "NFA" are mutually exclusive and this is why in ATF's opinion, 922r does not apply to the creation of an NFA firearm using all imported parts.

This is ATF's opinion, not simply what i think about it. There is ATF correspondance posted all over various boards confirming their opinion that 922r is not applicable to NFA firearms.

To the original question, 922r prosecutions are hard to dig up in public record, however that does not mean 922r is not enforced. 922r is a difficult case to prove in court due to its complexity (it's not a jury friendly arguement), but 922r violations are and have been used to charge load a case against a defendant just to pressure a plea deal. The 922r violations get dropped in exchange for an acceptable guilty plea.

And as someone already said, a firearm that has been modified in violation of 922r is a contraband firearm and cannot be retained by the owner even if no charges are filed. Yes, the 922r criminal violation is in the act of modifying, not the possession of said firearm, however the resulting firearm being illegal causes a domino effect of other charges starting with possession of an illegally imported firearm. If you sell it, it's another felony.

[SI-guru]

SBRs must still comply with 922(r).

Oh yes, yes they must.

DEPARTMENT OF THE TREASURY
Bureau of Alcohol, Tobacco and Firearms
Washington, D.C. 20226

MAR 22, 1994

LE:F:FE:RLB
3312.5

Mr XXX
Address
City, State

Dear Mr. XXX:

This refers to your letter of February 28, 1994, in which you
inquire as to whether the making of certain National Firearm Act
(NFA) weapons is prohibited by Title 18 United States Code
(U.S.C.), Chapter 44, Section 922(r). The weapon in question is a
FN/FAL type firearm having a barrel length of less than 16 inches
which is assembled from an imported British L1A1 parts kit and a
domestically manufactured frame or receiver.

Title 18 U.S.C., Chapter 44, Section 922(r) provides that it shall
be unlawful for any person to assemble from imported parts any
semiautomatic rifle or shotgun which is identical to any rifle or
shotgun prohibited from importation under 18 U.S.C., Chapter 44,
Section 925(d)(3), as not being particularly suitable for or
readily adaptable to sporting purposes.

However, the Bureau has previously determined that the lawful
making of an NFA weapon would not violate Section 922(r), since the
section only addresses the assembly of "nonsporting" firearms, and
not the making of NFA weapons. Therefore, the lawful making of a
short barreled rifle would not be precluded by Section 922(r).

If you decide to proceed with your project, it will be necessary
for you to obtain prior approval by first submitting an ATF Form 1
(Application To Make and Register a Firearm) and paying the
appropriate $200 making tax. Additional information relative to
this procedure may be obtained from the following source:

Bureau of Alcohol, Tobacco and Firearms
NFA Branch, Room 5300
650 Massachusetts Avenue, NW
Washington DC 20026

We trust that the foregoing was responsive to your inquiry. If we
may be of any further assistance, please contact us.

Sincerely yours,
[signed]
Edward M. Owen, Jr.
Chief, Firearms Technology Branch