*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.