*Perfectly legal* unregistered full-auto AKs ???

Machine-gun conviction tossed (http://www.sacbee.com/content/news/story/7781891p-8720723c.html)


By Claire Cooper -- Bee Legal Affairs Writer
The Sacramento Bee
Friday, November 14, 2003

SAN FRANCISCO -- A federal appeals court on Thursday reversed an Arizona man's federal conviction for unlawful possession of five homemade machine guns, ruling that his weapons did not affect interstate commerce. Regulation of interstate commerce was the basis of the federal ban on machine gun possession.

Robert Stewart crafted his own guns in his own home. Even though some components had crossed state lines, "these components did not add up to a gun," wrote 9th U.S. Circuit Court of Appeals Judge Alex Kozinski of Pasadena. "Not even close."

However, the 2-1 decision rejected arguments that the Second Amendment provided a right to keep machine guns. It also said Stewart, who had a prior felony conviction, could be prosecuted under a federal ban on possession of firearms by a felon.

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Okay, the logic behind the commerce clause is that the Constitution grants the fedgov the right to tax and regulate interstate commerce. That is the legal authority behind just about all federal gun laws, including the National Firearms Act of 1934, which requires a federal 'tax stamp' and compliance with federal regs for any full-auto weapon, short-barrelled shotgun or rifle, or pistol with a shoulder stock. The logic in the recent Stewart decision in the Ninth Circuit Court was that a homemade firearm does not enter the stream of commerce, thus is beyond the power of the fedgov to regulate.

Federal case law long ago determined that the receiver, or part of the gun that has the serial number stamped on it (it is the sideplate in a Browning M1919) is legally the firearm, and all the rest of the parts are not firearms and are beyond the power of the fedgov to regulate. This is why we can purchase parts kits through the mail. Case law has also ruled that a partially-finished receiver is not a firearm subject to federal regulation unless both completed and then sold to another party. This is why you can purchase partially-finished receivers through the mail, no 'yellow forms' or serial numbers required. Thus one may purchase a parts kit and partially-finished receiver, assemble them into a firearm oneself, and have a legal firearm with no serial number and no requirement to fill out federal 'yellow forms' for the gun. A lot of people do this very thing.

So certainly if one were to take an partially-finished AK receiver, marry it to an AK parts kit & full-auto fire controls set, and do the labor yourself, you would have a legal full-auto AK under federal law. Of course, this applies to all firearms, not just AKs. That does not in any way relieve you of limitiations under state laws, but you would have cleared all fedgov legal hurdles.

So I would like to hear some comment on this, and why it will or will not work.

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And BTW, The Tannery Shop has 'pre-bent' AK receiver blanks for $45 and reciever plates w/ rails for $99 (plus shipping), plus lots of other partially-finished receivers & frames for other weapon types:

http://www.tanneryshop.com/PRODUCTS.html

Some assembly is required. ;)

You do have a good point considering the recent ruling by the 9th. As long as a person builds and doesn't cross state lines they can't be procecuted under FEDERAL law. But I would not want to be the first one to test that ruling. It would mean major $$$$. And don't forget, there are people in the .gov who have some kind of irrational fear of honest, law abiding citizens possessing full autos. They will do everthing in their power to ruin your life and make an example of you. Have you tried asking the devil himself, the BATFE, how they interpet that ruling?

BATFE has a habit of "interpreting" laws as they see fit. If you want to fight them in court, as this man did, they are using your tax dollars to fight you.

I suspect that most states that do not prohibit FA firearms don't have much on the books about them. It would depend on the judge that was ruling. I'm surprised that one ruled for gun -owners, and especially on FA firearms.

On the other hand, I know how fast AKs eat ammo. A FA is the LAST thing I need. :D

From what I've read, Montana gun laws allow machine guns on private property for experimentation without registration. Anyone from Montana that can clearify that?

Technically guys, the ATF is nothing more than a tax agency. They don't prosecute you for having the machine gun. That'd be illegal, and in violation of the Constitution, they prosecute for not paying a stupid $200 tax. Essentially all they are is a taxing agency that's been allowed to overstep their bounds, for the moment. They've killed and imprisoned alot of people on this detail. The kicker is, you can't pay the $200 tax, because you would then be arrested for being in violation of the 1986 Firearms Owners Protection Act. It's another wonderful piece of garbage legislation. If you are smart enough, and have connections to these types of hardware, keep it to yourself. Time will only be on your side.

Remember the old name, "Revenuers", from the moonshine days? We might as well just call them "The Tax Collectors".

I dont think you will be able to legally convert a purchased semi auto receiver to full auto based on the District 9 decision. As that receiver would probably be considered a commerce type item.

Stewart made his machine guns from pipe pieces purchased at a local steel yard.

If you can bend your own AK receiver etc then you might be able to make a full auto from that.

If you want to test the waters of the district 9 decision then file a Form 1 to make the machine gun with the ATF.

Chances are it will get denied, but from what I have heard they are a little up in the air about the D-9 ruling. They either have to let it stand or try to get it to the supreme court, and in reality neither of those options is good for them. So they could decide to start approving F1s.

The other possibility is it gets denied, however many people are in the process of filing Form 1s right now. Which makes for a possible and probable class action suit for those denied, especially those in District 9.

There is also the possibility of new laws or re-written laws that would close this window of opportunity for making new machine guns, so if you are thinking of filing a Form 1 the sooner the better.

NOTE: The following is my SPECULATION on and analysis of the recent Ninth Circuit ruling. If you accept this or any other legal advice posted on the internet as factual and act on that basis, then you are an idiot and you deserve what you get (see what Packrat said above). You must research it yourself, then review your conclusions with a lawyer familiar with federal and state firearms laws, and then you must still realize that the courts may rule against you and you could be convicted of a serious felony and go to prison for years.

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While a semi-auto receiver is a BATFE-regulated item, an 80% receiver is not. Neither is an AK parts kit or a full-auto fire controls set. The BATFE tried to claim they had jurisdiction over these items, but the courts rebuffed them. That is why you can order these items through the mail without filling out any BATFE paperwork. I would assume then that if you married an 80% AK receiver to an AK parts kit & full-auto fire controls set, and did all the labor yourself, you would be within the new Ninth Circuit ruling. Filing a Form 1 or any other form with the BATFE should not be required. If the laws are changed to ban the home manufacture of such firearms, that would the time to file your BATFE paperwork.

Of course, there are still state laws to be satisfied. A typical example is Nevada's statute on automatic weapons:Nevada Revised Statutes

NRS 202.350 Manufacture, importation, possession or use of dangerous weapon or silencer; carrying concealed weapon without permit; penalties; issuance of permit to carry concealed weapon; exceptions.

- 1. Except as otherwise provided in this section and NRS 202.355 and 202.3653 to 202.369, inclusive, a person within this state shall not:

-- (b) Manufacture or cause to be manufactured, or import into the State, or keep, offer or expose for sale, or give, lend, possess or use a machine gun or a silencer, unless authorized by federal law;

http://www.leg.state.nv.us/nrs/nrs-202.html Due to the Ninth Circut decision, a homemade automatic weapon as described in this post is within federal law, thus should be legal in Nevada.

I also looked at the Oregon statute:Oregon Revised Statutes

166.272 Unlawful possession of machine guns, certain short-barreled firearms and firearms silencers. (1) A person commits the crime of unlawful possession of a machine gun, short-barreled rifle, short-barreled shotgun or firearms silencer if the person knowingly possesses any machine gun, short-barreled rifle, short-barreled shotgun or firearms silencer.

- (3) A peace officer may not arrest or charge a person for violating subsection (1) of this section if the person has in the person?s immediate possession documentation showing that the machine gun, short-barreled rifle, short-barreled shotgun or firearms silencer is registered as required under federal law.

http://www.leg.state.or.us/ors/166.html This wording is more problematic. Since federal law requires no registration of a homemade automatic weapon per the Ninth Circuit ruling, would having an extract of the case and a videotape & reciepts for materials proving you made the weapon yourself satisfy this statute? That is a question for a lawyer, or perhaps even for the Oregon Supreme Court justices.

Please feel free to comment on this.

"You don't tug on Superman's cape;
You don't spit into the wind;
You don't pull the mask off the old Lone Ranger,
and you don't mess around with THEM."

Them being the Federal Government...

(with apologies to Jim Croce, may he rest in peace)

Never pull the tail of a junkyard dog from his side of the fence. I don't think I'd stick my finger in this fan for love or money.

I heard the Feds had a certain period of time before they could appeal the Stewart case to the US supreme court. Does anyone know if their time has expired? I also understand that if they don't appeal it, the 9th ruling becomes law.

Has anyone gotten a form 1 approved from the BATF using this precedence yet?

a guy over at subguns.com received an approved F1 for an AK auto sear. He has been advised by the ATF that is was a screwup and to relinquish the sear and form.
His lawyer has other plans!!

Folks, a little bit of law info from your friendly pro-gun attorney.

Circuit courts oversee limited jurisdiction. The 9th Federal Circuitonly affects courts in CA, NV, AZ, OR, WA, ID, MT,AK, HI, Guam, Marshall Islands and nowhere else.

You folks probably remember reading about the recent case, Emerson v. US, which was a 5th Circuit ruling. The judge who wrote the opinion stated in comments on the case that the 2nd Amendment protects an individual right. Conversely, in the 9th Circuit, the Silveira vs Lockyer case held that the 2nd does NOT protect an individual right. Both cases were appealed to the Sup Ct -- both cases were denied hearing.

So, which one is law? BOTH. In the states overseen by the 9th (listed above) the law of the land is that the 2nd Am does not protect an individual right, and in the states in the 5th , the 2nd AM DOES.

Thus, the case at the beginning of this thread -- a 9th Circuit case -- ONLY APPLIES TO THE 9TH . If you live in any other state outside the 9th, you cannot use that case as good law.

http://www.uscourts.gov/images/CircuitMap.pdf

I can see a homemade machine gun made in Hawaii flying really well with local LEO's. :rofl_smal

If you want to test the waters of the district 9 decision then file a Form 1 to make the machine gun with the ATF.


Can you please explain the Form 1?

form 1 is a application to make and register a firearm, NFA kind.....like SBR, AOW.

Thanks, I hear form 1 and form 6 get tossed around a lot...I'm sure thier are others.

I can see a homemade machine gun made in Hawaii flying really well with local LEO's. :rofl_smal
I am sorry to report that the State of Hawaii has long ago made it illegal to own or possess a machine gun here, even if you have a Federal form for it. This precludes homemade ones too. The words are "own" and "possess".

HawaiiFALer :sad_small :mad: :mad_small

Funny thing is, Arizona has similar laws on the books. The AZ law is very specific, and includes ownership, possession, manufacture, transfer etc.

Your gonna be screwed anyway you go .

I hear you. Problem is, you might build em, you might even shoot em, nobody will give you a hard time, but the day your 17yr old is popped for possession, you screwed. They come to your house, dig through your crap and next thing you know, you're doing time. Not worth it. As much fun as owning a full auto would be, I'll stick to legal semi-auto 922r compliant ak's and the like. I can lay down a lot of lead in semi-auto, and when the time comes, I'm much more acurate with semi than full.
mac

Mactrekr is so right.

Anyway, I had my fun firing full-auto with weapons and ammo that all of you paid for while I was in the Army. :laugh_sma

Hawaii, Thanks for serving!
Mac

here is somthing to think about from the 5 US Circut Court


CONCLUSION

Regardless of one's view of the wisdom of banning the private possession of machineguns, the question before this court is whether the Commerce Clause grants Congress the authority to ban private, intrastate possession of a machinegun with no showing that the prohibition is connected in any way to interstate commerce or is part of a broader federal regulatory scheme. Congress's commerce powers are broad, reaching even Roscoe Filburn's wheat field in Ohio. Wickard v. Filburn , 317 U.S. 111, 63 S.Ct. 82 (1942). Lopez , however, closely controls this case. Lopez does not permit Congress, acting pursuant to the Commerce Clause, to criminalize the mere intrastate possession of machineguns without some indication that the possession ban is necessary to the regulation of, or has some other substantial tie to, interstate commerce. Section 922(o)'s ban on the mere possession of a machinegun exceeds Congress's authority under the Commerce Clause.

* Judge Benavides was recused from consideration of this case.

HVAC,

I personally agree w/ you that Lopez does control this issue. Basically, the reason the statute in Lopez was shot down was the lack of a jurisdictional element (think FIP). A similar argument was made in U.S. V. Rybar, 103 F.3d 273 (3rd Cir. 1996)... it didn't go very well for the unregistered mg owner... Our newest appointed justice did dissent however!! :)

Unfortunately, I highly doubt the SC will take this issue up...

I am sorry to report that the State of Hawaii has long ago made it illegal to own or possess a machine gun here, even if you have a Federal form for it. This precludes homemade ones too. The words are "own" and "possess".

HawaiiFALer :sad_small :mad: :mad_small

I was being sarcastic.

beleive me, the great un-justice democracy we call "america" would find a way to lock you up, but otherwise, go for it...

Does anyone know the name of the defence lawyer in the above 9th district court case? Friend of mine is an FFL and needs a good federal defence lawyer for selling guns across state lines. Or any recomendation would be apreciated. Thank you.

if he's has a FFL he can sell legal firearms to anyone across state lines, it just has to go to that buyer's FFL for the transfer, the procedure is that the FFLs exchange copies of their licences and file it.......in fact anybody can sell a legal firearm across state lines, as long as the firearm goes to a FFL holder, to be legally transfered to the buyer of the firearm, as long as there is no state or local law forbidding ownership of that firearm. a non-FFL does not need the buyer copy of the FFL licence, and the ATF advices them not to send their FFL lcinece to a non-FFL holder......the seller just need the licence number of the FFL holder, go to ATF FFL E-Z check, verify it is a valid licence and send that fiream to him

He is an FFL dealer in Idaho, he went 25 miles into Washington state to a gun show where he had a table and sold a run of the mill long gun to an individual (undercover agent). The ATF now states that you cannot buy or sell direct (without a transfer FFL) outside your state of residence, regardless of you being an FFL or not. Anyone know a good defense laywer or who the one was that participated in the above 9th district court case?
Thank you

......................had he been a resident of Washington State the whole ordeal would have been legal. I found the defence lawyer

http://caselaw.lp.findlaw.com/data2/circs/9th/0210318p.

Any other recomendations would be apreciated. Thank you.

Wow. what a nice discussion guys. I feel It's our duties as citizens to collectively discuss and understand the laws.

BATFE has a habit of "interpreting" laws as they see fit. If you want to fight them in court, as this man did, they are using your tax dollars to fight you.

I suspect that most states that do not prohibit FA firearms don't have much on the books about them. It would depend on the judge that was ruling. I'm surprised that one ruled for gun -owners, and especially on FA firearms.

On the other hand, I know how fast AKs eat ammo. A FA is the LAST thing I need. :DAs they said in Economics class...Resources are limited but our wants are unlimited. Guess that describes me really well. I don't NEED a FA either but boy, do I want at least one. While we are on the subject of lawyers here, how come they do not do any 'pro bono' work to get rid of the FOPA of '86 if they are so quick in being defense lawyers for the suspects at gitmo?

I am sorry to report that the State of Hawaii has long ago made it illegal to own or possess a machine gun here, even if you have a Federal form for it. This precludes homemade ones too. The words are "own" and "possess".

HawaiiFALer :sad_small :mad: :mad_small


Not to worry. There are plenty of "off the books" full autos in private hands in the Islands. If your on the Big Island, just take a trip down to H.O.V.E. on a Sunday and you'll hear the sweet sound of "unregistered" full-auto fun. Puna boys do like their toys! And Hawaiian gun owners have just about every flavor under the sun, except for a COLT potato-digger. Haven't seen one of those yet down at the range.

You don't pull the mask off the old Lone Ranger,
I don't know about superman as he is now gone but here is the lone ranger without the mask. Unfortunately someone DID pull off his mask because it was time to hang up the guns and put 'silver' out to pasture. He was just too old to play the character anymore. Or so they said.

The ATF has now reversed itself AGAIN, this time on those little CZ-26 kits. And they're being so very nice about it:

- Certified Letter from "Recall Center"

Inside you'll learn that:

- Even though it was just a bag of parts that you bought perfectly legally SIX YEARS AGO, we kept your name and address on file just in case we might change our mind.

- We changed our mind.

- We want the parts back. YOU pay for the return postage (Registered, Return Receipt).

- No, we will not reimburse you the $150 per kit.

- If you tell us you no longer have the kit(s), ATF agents WILL contact/visit you.


_________________

Isn't that pleasant?

What's the link?
Not that I have one of those kits.

T
- We want the parts back. YOU pay for the return postage (Registered, Return Receipt).

- No, we will not reimburse you the $150 per kit.

- If you tell us you no longer have the kit(s), ATF agents WILL contact/visit you.





OK, one thing wrong with that.........The ATF never wants the full kits back, what they want and is concerned about getting back is the receiver parts, in all the "recalls" that have happen, FALs, PPsh, what they want is the pieces of the improperly demilled receiver, which is the the firearm, they could care less about the other parts. the only time the ATF recalled a complete weapon was when those M-76 were imported a long time ago, and then the distubutor contacted the people that bought them and told them to send it back to them for a full refund

I saw those CZ-26 kits being sold at the gun shows here.......and all of them were just saw cut, the back the middle......

And you didn't get one of those untraceable kits, right?

If you previously sold the kit, write a formal letter and send it in. ATF will want to know the name of the individual that you sold the kit to.

I sold mine at a gun show and I have no idea what the guy's name was. I dealt with this previously on another part and the ATF showed up at my door. They were very courteous and I explained to them the same. We spoke for about 20 minutes in my living room over coffee and then they left. That was 4 years ago and haven't heard a thing about it since.

all of them were just saw cut, the back the middle......


AND if I recall correctly, there were sections missing out of the saw cut. Regardless, this was something imported under the auspices and review of the ATF. It was sold under the auspices of the ATF and all this happened years ago. Now, years later, they've changed their minds.

Fine, I too got rid of the parts a few months after getting them. What bugs me is what future reversals they'll make on, for example, the AK "kits" that came in. Or the AR kits, or any other "kit" they've approved today, and want to recall tomorrow.

For mr 16r40,
ATF has demanded complete kits back before. The uzi kits from Coles comes to mind because I had 3 kits stolen from me by the feds. I tried to give them only the receiver parts but they wanted it all. This was doubly surprising because I am a licensed Class 2 manufacturer and registered the guns I had built from parts. The agents who picked up the stuff had no idea what a class 2 was and they didn't even recognize their own forms for registration. There are no absolutes with the ATF and regional differences are frequently vast. Many of the guys who had parts picked up in the Interord disaster were required to surrender complete kits as well. That was the PPSh 41-FAL-AK deal. I don't know what ever happened with the interord deal but Gary Cole won his suit against them and they are supposed to release the parts sets they stole from him. Fat chance of that ever happening.....
The worst part of the whole deal is that if you plead ignorance or say you sold off your kits they can get a search warrant and pretty much destroy your home with the blessing of the govt and courts. Think twice before lying to them. When they came after my uzi kits they had lists of serial numbers from the original guns. They had names next to them as well.....I don't know where all their info comes from but they get it.....

good luck
Frank