hypothetical NFA question

[animal]

Ok, Is this procedure legal ? .. on an individual sale …

The owner (who didn’t know what he was doing)had tried to smooth / lighten the trigger on an SKS. The prospective buyer had never seen the rifle fired but hearsay was that it would "go auto".

The prospective buyer lays the money on the kitchen table to show the owner that he is serious about the sale but stipulates that first he needs to disassemble and inspect the rifle. The P.B. pulls from his pocket a few tools, including a homemade brace for the trigger housing, and disassembles the rifle. The "modified" parts are pushed across the table to the owner.
The money is then handed to the owner while saying "I’ll pay your asking price for the rifle but I don’t want those damaged parts. I recommend destroying them.". The receipt is made out for SKS # xxxxx with missing trigger group parts. The buyer leaves with rifle minus the damaged parts while the seller is breaking up the parts in a vise. Later the buyer orders parts and repairs rifle.

 

[Old Gaffer]

Not being a lawyer, but applying logic (I know, I know...) it appears that the seller did not sell a NFA firearm, nor did the buyer purchase one.

The seller MAY have been in violation, but lacking evidence (as opposed to hearsay) of the rifle going full auto, I think it'd be a hard case to make, and once the parts were destroyed, the gov't would have to waste a lot of money to prove its point.

Not that doing so ever stopped them...

All the best,
Rob

 

[cabin pressure]

This is an excellent time to remind everyone of something: the law does not matter to the IRS and BATFE. It just does not matter to them. They have been given nearly all power. They violate their OWN regulations as a matter of standard operating procedure. Thus, talking about hypothetical scenarios as they relate to the law is pointless when dealing with entities that regularly do not follow the law. BATFE has no clear testing standards because THEY DON'T HAVE TO have any testing standards. Since 1934, the entire federal system was completely altered and the constitution was overthrown. The goal was set by the new owners of this country in 1934, and this was the message that was sent to BATFE's predecessors: "Your job is to disarm the american people and when you can use the law to do it, then hell, do it, but if you can get away with using your raw POWER to disarm americans then do it. The "courts" will do everything possible to increase your power and keep the law vague and keep your power vague and open ended. Now get to work!"

This is the RULE folks: BATFE doesn't care about the law because they were created to view us as people to be disarmed no matter what the means.

This hypothetical reminds me of the BATFE abuse against Len Savage: http://www.jpfo.org/alerts/alert20050701a.htm

In this hypothetical, NO ONE has violated any law, but BATFE has effectively all power and has power to be almost as arbitrary as they want. THUS, if the BATFE gets a hold of that hypothetical gun, whoever the owner is MOST LIKELY WILL BE CHARGED WITH POSSESSION OF THE 2ND AMENDMENT (a felony).

What makes this even worse, is your fellow citizens on juries, most of whom are amazingly ignorant and lazy government loyalists, will vote to send you to the gulag if the "judge" tells them they "have to."

When it comes to BATFE and IRS, you can be following the "National Firearms Act" and/or the Internal Revenue code and published regulations TO THE LETTER, but the evil agencies who enforce these abominations refuse to follow their own regs OR the law, and if you dare to quote "too much" of the law in court (especially if you dare go near the constitution), the "judge" will fine you and forbid the jury from considering the law you tried to cite. The list of citizens this has happened to is getting rather long.

 

[animal]

Ok, I didn’t mean for this to become a "bash the ATF" thread. I am asking what the law would say not how an agent (or agency) might act. I was hoping someone with some legal experience might be able to give an answer. My thoughts are :

1 Seller didn’t try to break the law.
2 Buyer didn’t take possession of anything illegal.
3 Buyer didn’t know for a fact that the gun would go auto in the first place.

So everybody’s in the clear … yes or no?

BTW .. The Len Savage stuff doesn’t really apply since the SKS is a design already recognized by ATF.

 

[gfen]

I'd assume you were in the clear even if you knew it had a tendency to go FA and you removed the appropriate pieces and left them.

IANAL.

 

[44 AMP]

Function check

Leaving aside for the moment the "rumor" that the gun will go auto,

prior to purchase of a used gun (and in particular a milsurp semiauto) the prospective purchaser should perform a function check. After which one will have an idea whether or not the gun is worth the agreed on price, or if further negotiations are in order.

Creating a SAFE functioning full auto weapon requires more than "slicking up the trigger group". A safe functioning full auto fires when you want it to, and stops firing when you want it to. If someone "slicks up the trigger" and the gun goes full auto, what they have done is to make the gun malfunction. It is BROKEN, and could quite possibly go off on its own, and/or not stop firing until it is out of ammo (or jams). When this happens, the gun is broken, and if immediately turned in to a gunsmith for repair, charges are normally not filed.

As the one poster stated, the BATFE often acts as a law unto itself, but they do have some people who are rational, and real malfunctions are seldom an issue. Now, if they have any reason to believe your friend "slicked up" the SKS with the intention of making a full auto, or that you bought it with the idea you were getting a full auto, that you very well could wind up explaining to a judge.

If you take possession of the rifle without a functioning trigger group, the rifle will not fire, so technically it cannot be a full auto. BUT, the definition of a FA firearm has been amended to include firearms which can be readily converted to fire full auto, so this is a slippery slope.

I'm no lawyer, but logic says to me that if you do not accept the damaged parts (and you have no certain knowledge that the gun actually goes auto), you should be on safe legal grounds. But I can't say that with absolute certainty.

A function check of the rifle will show if it fires when it shouldn't, as much as can be done without actually firing the rifle. There is a little more to it, but basically, make sure the rifle is empty. Check it again. Check it a third time. Then dryfire the gun. Holding the trigger back, work the action. If the hammer falls when the action shuts, with the trigger held back from the first "shot" you have a serious problem, and a legal dilemma. The gun is either "broken" or has been modified to full auto. If the trigger must be released to reset it for the next "shot" the gun is a proper semi auto. Work the action several times, without touching the trigger, make sure the hammer doesn't snap. Put the safety on, pull the trigger (gun should not fire) then without touching thr trigger, take the safety off. Gun should not fire. With the safety on and off jar the gun (but do it so as to not damage the finish) if the gun fires, it is broken and needs repair. There are a few more thing you can do, but you get the idea.

If the deal is for the gun "as is" that is one thing, but if the gun is represented as safe and functional, it should pass a basic function test. If it doesn't, the asking price should be "adjusted" to reflect the fact that the gun needs repair.

And just for the record, if you do wind up with a gun that malfuctions and "doubles" or fires in any way full auto, and you don't get it fixed, if the BATF finds out about it, they WILL be after you.

Good Luck.

 

[cabin pressure]

Ok, I didn’t mean for this to become a "bash the ATF" thread.

First, labeling something as "bashing" is a diversionary word. Something is either true or it isn't, and based on BATFE behavior, you can analyze all the legalities you want but it does not change certain realities about BATFE (again, based on their behavior, since actions matter MORE than words)

1 Seller didn’t try to break the law. Give us a break here. Whether one "tried" to break the law or not is COMPLETELY irrelevant. That nonsense MIGHT factor in at a person's sentencing. Prosecutors' favorite thing to preach to juries is that "he may not have tried but the fact is he DID"

2 Buyer didn’t take possession of anything illegal. This could matter, but it hinges on the definition of "illegal," which, whether you want to admit it or not, is highly arbitrary depending on certain BATFE agendas

3 Buyer didn’t know for a fact that the gun would go auto in the first place. WOW, you are going into dangerous territory with this one. Ignorance of the law is NEVER a defense, ESPECIALLY when BATFE has physical control of the evidence. BATFE has a history of it's "experts" claiming some amazing things about guns it has in it's custody (things that never help the defense). Ignorance of a gun that goes full auto is also no defense in the eyes of these federal prosecutors. Claiming "I didn't know it would go full auto" is exactly what prosecutors love to hear because they know they're about to win.

BTW .. The Len Savage stuff doesn’t really apply since the SKS is a design already recognized by ATF.

Something tells me you either didn't read the "Len Savage stuff" or you don't realize that whether a design is "already recognized by the atf" (which effectively all designs are) is not the issue at all. The issue is that BATFE has no published OR clear testing standards, and it has shown to be extremely arbitrary in it's behavior.

 

[animal]

cabin pressure

"bashing" is a diversionary word.

OK. I’ll give that to you. I am guilty of trying to divert the scope of the discussion back to the original intent of the question rather than have it hijacked.
Response to your points:
1 In this type of case intent is relevant.
2 I am interested in what US code says. .. not your opinion of how ATF interprets it.
3 Not ignorance of the law. Look up mens rea.

Len Savage: I read over the article by Len Savage your link was apparently to. I am not buying the video just to see what’s in it. The cases cited in the article were of a worn out gun that occasionally slam fired, new classification of designs by manufacturers, and swapping around upper receivers on M-10/11s. The SKS in this question has no inordinate wear, is of a design which is accepted by ATF as a semiautomatic, and has no modification or change in the receiver. I seriously doubt that ATF could justify reclassifying the SKS design as "readily restorable to full auto."

I don't know if I can pee farther than you but I'm sure that I can do it with greater accuracy.

A better question is :"Why am I bothering to respond to this?"
If you want to preach about ATF, there’s a button that says "New Thread" … Why don’t you click it. I might even agree with some of your points.

 

[shaggy]

This has little to do with the Len Savage situation...or Ernie Wrenn, or the Akins Group. BATFE does not make up law, as has been stated here, but they can and do interpret and apply the statutes to specific instances. Congress has broadly regulated machineguns and conversion parts therefor, but what exactly constitutes conversion parts or "readily convertable" is left to the discretion of BATFE. Necessary & proper clause, anyone? Arbitrary rulings? Perhaps, in your opinion, but arbitrary and capricious is the usual standard for getting an agency ruling struck down. Don't confuse a formal ruling with an advisory opinion, however, as is the case with most US manufacturers submitting samples to the Tech Branch for evaluation.

Now thats out of the way...

Assuming there have been no modification to the receiver of the SKS or any of the remaining parts that were sold with the gun, and assuming the newly installed parts are semi-auto only with no doubling or occasional full-auto, the buyer should be fine.

 

[VUPDblue]

Intent is one of the keys here, too. A lot of people will buy a device and try to work on it themselves, and in the process, screw it up. FUBAR. They will then freak-out and either dispose of it or sell it. You see this all the time in the motorcycle/collector car industry. Someone will be selling, very cheap, a "basket case". All the parts are there, some may or may not be damaged, but the seller doesn't want to fool with it anymore. Some gun owners are the same. A guy at my gun club did some trigger work on a 1911. He put it in a Ransom Rest and the gun emptied the mag. The first round was on target, the others left the range and one hit a car. He sold the gun "as is" to someone who got a very good deal, and knew how to work on a 1911. My point is that although the firearm functioned in a fully automatic way, it was agreed that it was broken, not "fixed" and in need of repair to correct the unsafe modification. I would think that even if an officer of the BATFE wittnessed such an occurence as described above, he would not opine that it was a violation of the NFA. The agents I know would say "dang, you really effed-up that 1911. Better get it fixed ASAP." It would not be in the spirit of the law to prosecute someone on a NFA violation given that situation.

 

[Csspecs]

I might mention that some of the cases of guns "going auto" is more that the trigger is so light that just the recoil of the bolt slamming shut can pull the trigger. Either way it's not safe.

The ATF is not completely stupid, they know what a full auto is. I believe that a number of the story's about someone that had a gun "malfunction" and the ATF busted them, one thing that is left out of the story is how exactly the ATF found out about the gun, they don't just raid people at random. What is normally happening is that the gun malfunctions and the shooter thinks that it is cool, they leave it broken as a fun toy to play with every now and then. The ATF is called by one of the neighbors that has been hearing this shooting for the past week or more and thinks that something is up.

I don't believe many of the story's I read online.

 

[VUPDblue]

The ATF is not completely stupid, they know what a full auto is. I believe that a number of the story's about someone that had a gun "malfunction" and the ATF busted them, one thing that is left out of the story is how exactly the ATF found out about the gun, they don't just raid people at random. What is normally happening is that the gun malfunctions and the shooter thinks that it is cool, they leave it broken as a fun toy to play with every now and then. The ATF is called by one of the neighbors that has been hearing this shooting for the past week or more and thinks that something is up.

I don't believe many of the story's I read online.

+1 on that. Back in college, I was taking Criminal Law IV and at the time, we were required to look at a case that was pending with any jurisdiction and give our opinion. I looked at a case where a man was arrested and charged with just such a violation. The facts were all similar to the situation described above. The deciding factor of guilt, for me, was how the firearm came under the review of the ATF. Turns out that it was exactly as csspecs describes. The owner thought it was a fun toy and someone tattled. That's all the intent needed to file charges, and as it turns out, win the case.

 

[Thesenator]

I really think it depends on what the definition of IS is.

Hey...***, it worked for Bill!