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

Machine-gun conviction tossed

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.

 

OMG, this was from the 9th? maybe the judges were high that day.

Seacowboys?

 

agreed. but if the 9th found nothing wrong with the MGs on the interstate commerce clause. we may just have something here.,

Sea?

 

This is interesting from many angles. The ruling was made on VERY narrow arguements, but might be useful in precedent. Does anyone have the case reference for reading? The question looks to deteriorate to something akin to "When is a gun not a gun?" Is it a gun when it crosses a state line but not before? Somehow that looks like a trap. And, (ignoring state law) if I build it in VA, and relocate to WVA, has it magically become a regulated gun simply from the move? Is it now regulated because it was in a moving van or can I carry it over myself without it becoming regulated? Current law, precedent and practice says it's a gun no matter, but that supposes (probably a GOOD supposition) that the definition is independent of where or when, but on the fact it spits a bullet.

Hypothetically, then, suppose I buy a Sig pistol (factory assembled from imported parts never entered into interstate trade, they entered the stream from Portsmouth, NH) while living in NH. Is it a gun when I buy it, or does it become one when I move to VT? Suppose I buy it in NH and sell it in NH before I move. Is still not a gun because it didn't cross a state line?

If it isn't a gun until into interstate commerce, the rules are in for a thorough shaking up.

 

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

 

It would be nice to own one without a Bank loan to do so.
But it doesnt rule me , I played with tons of full auto fire in the service.
So i can wait to see if the law gets changed.
Or i hit the lottery and buy a few pre 86's.

 

Maybe I can help out a little Quig. I'll move to OR, Amy can be my dentist, and with the income from maintaining this old mouth of mine, you'll be able to buy all sorts of toys. I think I bought my current dentist his first Corvette,

 

Wow : shock: RH anything dental is free of charge out here from us. When she is done and practicing.

 

this ever go anywhere?