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

Discussion in 'Firearms' started by Quigley_Sharps, Nov 12, 2005.

  1. Quigley_Sharps

    Quigley_Sharps The Badministrator Administrator Founding Member

    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.


    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.
  2. melbo

    melbo Hunter Gatherer Administrator Founding Member

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

  3. Valkman

    Valkman Knifemaker Moderator Emeritus Founding Member

    That is huge, although that guy is screwed. They can get him on state laws and also being a felon in possesion.
  4. melbo

    melbo Hunter Gatherer Administrator Founding Member

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

  5. magnus392

    magnus392 Field Marshall Mags Moderator Emeritus Founding Member

    Well to do that he would have had to made his own receiver of used one born in his state to keep the "firearm" from crossing state lines. I wouldn't trust a non-heat treated receiver on an MG, lol.

    Second...IIRC many states are cool with NFA items as long as you adhere to federal regulations.

    To build MG's you need to be licenced to a certain degree...and I guess that is where the court just let him off?

    I wouldn't run out and build any MG's because of this, lol
  6. ghrit

    ghrit Bad company Administrator Founding Member

    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.
  7. Seacowboys

    Seacowboys Senior Member Founding Member

    I sure would like to get John Ross's opinion on this. It seems like a golden opportunity for a test case to stand up and challenge the issues before the supreme bench. Boy, wouldn't this piss off the boys collecting my ciggerette taxes? WOnder if it applies to moon-shine to? It worked for home-grown tobacco.
  8. magnus392

    magnus392 Field Marshall Mags Moderator Emeritus Founding Member

    I think the argument is that the full auto parts are not the machine gun. By legal definition the firearms is the receiver, there for it the the part subject to the interstate commerce clause not the FA parts.

    Therefore it doesn't' matter where the kit, or the fcg came from it is the receiver that is subject to law. I don't know if that part crossed state lines...so who knows...

    Funny thing about it is, if one even possesses M-16 FCG parts and an AR-15 in the same residence the BATFE has supposedly busted ppl for intent to manufacture a machine gun.

    We all know the BATFE can enforce, choose not to enforce whatever laws it wants to. If there is an agency in the US government that needs a balance it is this one.
  9. Quigley_Sharps

    Quigley_Sharps The Badministrator Administrator Founding Member

    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.

  10. magnus392

    magnus392 Field Marshall Mags Moderator Emeritus Founding Member

    Yeah but you could probably still use the precedent? I know I don't want to try it myself, lol.
  11. E.L.

    E.L. Moderator of Lead Moderator Emeritus Founding Member

    Keep in mind that the 9th circuit court of appeals is the most reversed court in the land. I would like to see this go further though.
  12. magnus392

    magnus392 Field Marshall Mags Moderator Emeritus Founding Member

    Bad thing about it is we shouldn't be having this discussion...the NFA should never have passed, the BATFE shouldn't exist, little on the '86 MG ban.
  13. 155gunner

    155gunner Monkey+++ Founding Member

    Amen brother, Amen!!!!!!!
  14. Quigley_Sharps

    Quigley_Sharps The Badministrator Administrator Founding Member

  15. Quigley_Sharps

    Quigley_Sharps The Badministrator Administrator Founding Member

  16. Quigley_Sharps

    Quigley_Sharps The Badministrator Administrator Founding Member

    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. [beer]
  17. RightHand

    RightHand Been There, Done That RIP 4/15/21 Moderator Moderator Emeritus Founding Member

    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,
  18. Quigley_Sharps

    Quigley_Sharps The Badministrator Administrator Founding Member

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

    monkeyman Monkey+++ Moderator Emeritus Founding Member

    While if the 2nd is interpruted as it was written then evey citizen would have the right to ANY weapon they could aford includeing tanks and artilery or whatever, the founding faathers when writeing it had just gotten done haveing to kick out a gov gone bad while underarmed and wanted to be sure the people could be the check for the entire gov they were creating. That being said yeah it would be legal and even with the 'false laws' (any law in violation of the constitution is NOT in fact a law at all) it would likely fit through loopholes but unless you have several million where it cant be recoed that you can use for bond and lawyer fees to fight it when the masked men kick in your door (assumeing they dont shoot you on the way in) then I wouldnt advise trying it, and even if you did fight it to the supreeme court the fact that its protected under the 2nd dosnt mean that the folks wearing the robes will acknowledge that fact and if they dont you get to rot with Bubba at your back. :eek:
  20. melbo

    melbo Hunter Gatherer Administrator Founding Member

    this ever go anywhere?
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