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Modern listed as antique weapon 2
beantownshootah
Member Posts: 12,776 ✭✭✭
quote:tjh1948
You really need to look at what the actual Statute says about the transaction. IIRC, it is just as illegal to receive a weapon in interstate commerce as it is to ship it if the transfer does not meet all the legal requirements of the GCA. It could be that knowledge is not an element of the offense, kind of like possession of a weapon with a altered\removed serial number. You are the one who is assumed to have removed it. The long & short of it is you will spend a small fortune defending yourself & probably end up pleading to a Felony with no jail time just to put it past you.
See below. In general, its unwise to plead guilty to a felony without benefit of good legal counsel. If you really haven't done anything wrong, chances are pretty good (though not absolute) that you can wiggle free or at least partly free with a vigorous legal defense.
quote:Originally posted by competentone
"Ignorance is no excuse" when it comes to breaking the law, but prosecutors -- and juries -- will tend to be more lenient if one made an honest mistake as opposed to if one acted with specific knowledge that one's action was breaking the law.
So in short, if the seller thought something was an antique, and you know otherwise, you run the greater risk "going along" with the seller's mistaken position.
To be clear, ignorance OF THE LAW is not a valid legal defense.
But one of the (supposedly) necessary elements of a conventional criminal act is intent. Without the intent to do something illegal (even if you didn't know it was illegal) you aren't committing a crime.
In your example, if you received a gun in ordinary mail as an antique that you knew wasn't one, you've probably just committed a crime by participating in an illegal transfer (I don't know for sure that merely receiving a rifle this way that you were otherwise allowed to own is by itself illegal. . .though I'd assume so. Its DEFINITELY the case that shipping a gun this way is illegal).
As a counter-example, lets say I send you $400 for a listed antique 1897 manufacture Mosin Nagant bolt action rifle. But instead, you send me a "modern" Mosin Nagant rifle actually made in 1900. In this example, I haven't committed a crime since there was no intent on my part to break the law. If I bought the thing at auction, the auction listing itself could serve as evidence that my intent was to complete a legal transaction.
If we assume that merely possessing a modern rifle shipped illegally in this way is itself a crime (I honestly don't know), then the second I realised the gun was a modern one, I'd be intentionally possessing it, which is a criminal act, but that's sort of a separate issue/question. In this particular case, its also not clear how exactly the BATFE (or anyone else) would even know that a crime was committed here, unless they were in on it, but again, that's a separate issue too.
With respect to guns with obliterated serial numbers, there are two potentially different crimes there: Destroying the serial number is itself a crime. In practice, unless you admit to doing it, are caught in the act actually doing it, or some eyewitness testifies to seeing you do it, that's a pretty tough thing to prove. That's one big reason why merely possessing any gun with a destroyed serial number is by itself a SEPARATE crime. And yes, that one is still subject to intent (or at least its "supposed" to be).
Obviously, if you're holding a gun with grind-marks where the serial numbers used to be, even if you didn't do the grinding yourself, the presumption is that you're aware of this. In any kind of legal transfer, you probably should take note of the gun's serials, and not noticing that they've been ground off is probably rightfully considered a form of negligence (which by itself can constitute a form of criminal intent). You might try to claim that you had "no idea" that your gun had ground-off serial numbers, but that's going to be a pretty hard sell to a prosecutor or jury, to the point where you probably shouldn't expect them to believe it.
On the other hand, I can imagine a situation where someone skillful alters a guns' serial number in a way that isn't at all easy to detect. For example, someone could alter one digit or add an extra one. Someone really good could weld over the entire serial number, polish it down, engrave a new one, and refinish the gun, to the point where it would be effectively impossible for anyone to know the serial had been altered without expert-level knowledge or sophisticated forensic examination. A gun like that could even conceivably change hands many times without anyone knowing the serial was tampered with. If you were ever caught with a gun like that, I think you probably could make a pretty strong argument that you had absolutely no intention of possessing an illegal gun, ESPECIALLY if you could document how you got the gun, that it was transferred legally with the altered serial, etc. Realistically, a prosecutor probably wouldn't try to bring a case like that, unless this was one of many other charges, or they had some other reason to single you out.
Bottom line, intent isn't an absolute defense but it should still matter in these types of cases, and being able to show that you at least TRIED to do the right thing can help. If you avoid transactions you suspect to be sketchy (let alone ones you absolutely know to be illegal!), that will go a long way to keeping you out of trouble.
You really need to look at what the actual Statute says about the transaction. IIRC, it is just as illegal to receive a weapon in interstate commerce as it is to ship it if the transfer does not meet all the legal requirements of the GCA. It could be that knowledge is not an element of the offense, kind of like possession of a weapon with a altered\removed serial number. You are the one who is assumed to have removed it. The long & short of it is you will spend a small fortune defending yourself & probably end up pleading to a Felony with no jail time just to put it past you.
See below. In general, its unwise to plead guilty to a felony without benefit of good legal counsel. If you really haven't done anything wrong, chances are pretty good (though not absolute) that you can wiggle free or at least partly free with a vigorous legal defense.
quote:Originally posted by competentone
"Ignorance is no excuse" when it comes to breaking the law, but prosecutors -- and juries -- will tend to be more lenient if one made an honest mistake as opposed to if one acted with specific knowledge that one's action was breaking the law.
So in short, if the seller thought something was an antique, and you know otherwise, you run the greater risk "going along" with the seller's mistaken position.
To be clear, ignorance OF THE LAW is not a valid legal defense.
But one of the (supposedly) necessary elements of a conventional criminal act is intent. Without the intent to do something illegal (even if you didn't know it was illegal) you aren't committing a crime.
In your example, if you received a gun in ordinary mail as an antique that you knew wasn't one, you've probably just committed a crime by participating in an illegal transfer (I don't know for sure that merely receiving a rifle this way that you were otherwise allowed to own is by itself illegal. . .though I'd assume so. Its DEFINITELY the case that shipping a gun this way is illegal).
As a counter-example, lets say I send you $400 for a listed antique 1897 manufacture Mosin Nagant bolt action rifle. But instead, you send me a "modern" Mosin Nagant rifle actually made in 1900. In this example, I haven't committed a crime since there was no intent on my part to break the law. If I bought the thing at auction, the auction listing itself could serve as evidence that my intent was to complete a legal transaction.
If we assume that merely possessing a modern rifle shipped illegally in this way is itself a crime (I honestly don't know), then the second I realised the gun was a modern one, I'd be intentionally possessing it, which is a criminal act, but that's sort of a separate issue/question. In this particular case, its also not clear how exactly the BATFE (or anyone else) would even know that a crime was committed here, unless they were in on it, but again, that's a separate issue too.
With respect to guns with obliterated serial numbers, there are two potentially different crimes there: Destroying the serial number is itself a crime. In practice, unless you admit to doing it, are caught in the act actually doing it, or some eyewitness testifies to seeing you do it, that's a pretty tough thing to prove. That's one big reason why merely possessing any gun with a destroyed serial number is by itself a SEPARATE crime. And yes, that one is still subject to intent (or at least its "supposed" to be).
Obviously, if you're holding a gun with grind-marks where the serial numbers used to be, even if you didn't do the grinding yourself, the presumption is that you're aware of this. In any kind of legal transfer, you probably should take note of the gun's serials, and not noticing that they've been ground off is probably rightfully considered a form of negligence (which by itself can constitute a form of criminal intent). You might try to claim that you had "no idea" that your gun had ground-off serial numbers, but that's going to be a pretty hard sell to a prosecutor or jury, to the point where you probably shouldn't expect them to believe it.
On the other hand, I can imagine a situation where someone skillful alters a guns' serial number in a way that isn't at all easy to detect. For example, someone could alter one digit or add an extra one. Someone really good could weld over the entire serial number, polish it down, engrave a new one, and refinish the gun, to the point where it would be effectively impossible for anyone to know the serial had been altered without expert-level knowledge or sophisticated forensic examination. A gun like that could even conceivably change hands many times without anyone knowing the serial was tampered with. If you were ever caught with a gun like that, I think you probably could make a pretty strong argument that you had absolutely no intention of possessing an illegal gun, ESPECIALLY if you could document how you got the gun, that it was transferred legally with the altered serial, etc. Realistically, a prosecutor probably wouldn't try to bring a case like that, unless this was one of many other charges, or they had some other reason to single you out.
Bottom line, intent isn't an absolute defense but it should still matter in these types of cases, and being able to show that you at least TRIED to do the right thing can help. If you avoid transactions you suspect to be sketchy (let alone ones you absolutely know to be illegal!), that will go a long way to keeping you out of trouble.
Comments
http://www.GunBroker.com/Auction/ViewItem.aspx?Item=421738752
Even though it's a Model 1898, it was manufactured in 1899. ATF regulations require that a firearm must have been manufactured PRIOR to Jan. 1, 1899 (1898 or before) in order to be classified as an "antique". Therefore, this Krag is a C&R eligible firearm but not an antique.
I e-mailed the seller and advised him of such as he most likely simply misunderstood the law.
If I bought that rifle as an "antique" without getting proper ID from the seller and logging the gun into my bound book, we could both be in trouble for violating the law. However, as possession is 9/10 of the law, I would most likely be in bigger trouble since, as a C&R holder, I either know or should know the law. I would also be kissing my C&R license goodbye.
Ironically, here's a Model 1898 Springfield that the seller says in his added statement that the rifle is an "antique".
http://www.GunBroker.com/Auction/ViewItem.aspx?Item=421738752
Even though it's a Model 1898, it was manufactured in 1899. ATF regulations require that a firearm must have been manufactured PRIOR to Jan. 1, 1899 (1898 or before) in order to be classified as an "antique". Therefore, this Krag is a C&R eligible firearm but not an antique.
I e-mailed the seller and advised him of such as he most likely simply misunderstood the law.
There is a formal legal definition of a firearm "antique", which you've mentioned, but also a colloquial defintion. For example, any sufficiently old collectible gun could be considered an "antique" like a piece of furniture. Obviously you'd hope that someone listing firearms for sale would appreciate the difference and know the details, but apparently not.
Still, regardless of what the seller knows or believes, in this particular case, the gun is listed for sale as a C&R in the C&R auction category. The seller indicates in his description that its a C&R and he presumably expects to go through either a regular FFL or C&R holder in selling it. (IE, nowhere does he indicate that he'd be willing to ship it directly not via FFL).
So whether or not he really knows what an "antique" gun is, in this case, the seller at least (NOW) appears to be treating it appropriately as a C&R.
quote:
If I bought that rifle as an "antique" without getting proper ID from the seller and logging the gun into my bound book, we could both be in trouble for violating the law. However, as possession is 9/10 of the law, I would most likely be in bigger trouble since, as a C&R holder, I either know or should know the law. I would also be kissing my C&R license goodbye.
In general, your specific knowledge of the law isn't important here; its what you actually DO, and your intent. If you knowingly receive a non-antique gun without going through an FFL, that's a crime, irrespective of whether or not you know its illegal to receive a gun this way.
Again, key is that you have to know the gun isn't an antique. If you legitimately believe the gun to be an antique, and you arrived at that belief via due care (not negligence) then receiving it wouldn't be a crime.
But as you say, unless the seller sends you the wrong thing, or has wrongly described the gun in question, there would be almost no way for you to receive a gun illegally this way and it NOT be negligence on your part.
Being mistaken about what year of manufacture constitutes a legal "antique" is almost by definition negligence; its up to you know the law here before you accept the weapon. Its also up to you to establish the year of manufacture of a gun you accept as an antique.
Now, in practice, its not clear to me how the BATFE would know about this type of thing unless the buyer or seller brought it to their attention. Assuming they did know, they certainly could try to throw the proverbial book at you and the seller, but again, as a matter of practice, that might depend on the specific circumstances. If the gun were really an 1899 gun, that was shipped as an antique but then you took appropriate steps to remedy the error (eg contacting them or subsequently logging it in as a C&R) a more reasonable agent might let it slide rather than refer for prosecution.
Again, the best way to not get into trouble is simply to know the law, follow it, and not try anything "sketchy". In the case of antique guns, those represent a specific legal "carveout", but if you want to invoke it, it behooves you to know exactly what you're buying and selling.
Edit:
quote:Originally posted by Spider7115
Even though the rifle is correctly listed in the C&R category, he added this statement beneath the description:
[Information added 6/4/2014 3:02:40 PM]
This rifle is considered to be an ANTIQUE!
I saw that. So he's calling it an "antique", wrongly. Maybe he just put the word "antique" in his listing to drive search hits (though he might as well have said this is "NOT an antique"!).
The real question isn't what he's calling the gun in his listing (ie there are PLENTY of wrong listings on GB, and elsewhere, as you know), but whether or not he's willing to *SHIP* it as an antique (ie no FFL). Perhaps he is, but if so, he's not indicating that anywhere in the auction.
Again, caveat emptor. If this guy is trying to screw a buyer by falsely listing and then shipping the gun as an antique knowing it isn't, he's playing with fire, because an irate buyer could easily report him to the BATFE for something like that (let alone his local law enforcement, GB.com, etc).
[Information added 6/4/2014 3:02:40 PM]
This rifle is considered to be an ANTIQUE!