Hypothetical 922r question

[Kliegl]

Forgive me if it has been asked before.

922r prohibits the assembly of a "non sporting weapon" from an imported "weapon in sporting condition" by changing parts to make it "non sporting" (usually "evil" features like bigger mags, pistol grips, bayonets, etc) unless one make it a "non imported gun" by lowering the foreign parts count to ten or less items off of the 22 or so item list. As I am sure everyone knows.

Anyway, question is: If you buy a used gun that is not in 922r compliance and it came with the evil features installed, is it an affirmative defense to claim you did not assemble the gun, thus not being in violation?

Looking for a "from the eyes of the law" answer, not a "you should make it compliant anyway since it's the right thing to do and we're all Boy Scouts here" answer. (Not being disrespectful to either the forum or the BSA, just clarifying.)

 

[TexasRifleman]

Here's the actual law:

"It shall be unlawful for any person to assemble from imported parts any semiautomatic rifle or any shotgun which is identical to any rifle or shotgun prohibited from importation under section 925(d)(3) of this chapter as not being particularly suitable for or readily adaptable to sporting purposes except that this subsection shall not apply to--

OK, so if you didn't assemble it that way then you didn't violate the law right?

Now prove that you didn't assemble it that way, someone else did. How exactly can you do that to the satisfaction of anyone who might be asking the question?

I think that's where it might get sticky but from a pure legal sense the law only says assembly, not possession. I would think (not a lawyer blah blah) you might skate on the 922r violation but the gun would probably not be returned to you.

 

[Sam1911]

I have always taken the phrasing to mean that the onus of complying was on the assembler/manufacturer, and thus did not worry about that matter WRT guns I hadn't built myself.

(I did for a while own an FAL that I was 90% certain had no compliance parts at all, but it was a beautiful matching parts kit and I was sad to sell it.)

Of course, we're still waiting to see trial records of someone prosecuted for this, so it's somewhat hard to say if a presumption that the owner of a weapon must have assembled it would hold up in court.

 

[Kliegl]

Good points. I was just wondering if you had to prove you didn't, or the state had to prove you did. I'm anal enough in my engineering profession to regard it as a shame to swap reverse engineered junk in to satisfy some irrational bleeding heart's phobias.

Fortunately, the two guns I have in this area are pre-89 and can rest safe in their 100% Teutonic glory and all the evil features.

 

[henschman]

The state has the burden of proof in a criminal prosecution. They would have to prove each element of the crime beyond a reasonable doubt. This means that they would have to prove that you knowingly manufactured the rifle into an illegal configuration.

If they were able to find some evidence that you purchased the rifle in original "sporting" configuration, such as a transfer form and/or a witness who testifies that they sold it to you, it could be circumstantial evidence that you were the one who altered it. If they show online transactions and credit card records showing you purchasing foreign parts, that could be evidence too. They could also come up with a witness who said they saw you put together the rifle, or more likely, a jailhouse snitch who they could give a good plea bargain to in exchange for testimony that you bragged in jail about putting together a rifle from foreign parts.

They would also have to show that the rifle in evidence actually contains more than the allowed number of foreign parts, which means they would have to prove whether certain parts (many of which are unmarked) are actually foreign-made. They could do this through some sort of BS expert witness. If they throw a guy on the stand and call him an "ATF firearms parts specialist" or some official-sounding title, it could serve as proof of that element.

It would be a fairly tough case to make. To be prosecuted under 922(r) it is likely that it would be pursuant to an investigation for other crimes, and the 922(r) charge would just be tacked on. It's not as if the ATF has agents combing gun ranges looking for rifles that look like they have too many foreign parts, or has agents using Carnivore to analyze internet transactions looking for people buying sporting rifles, and cross-checking them for people buying foreign parts.

So if you want to violate 922(r), you should try to buy the rifle from a private seller, and you should try to buy the conversion parts in person and pay cash. You should also not go around bragging about it. And if by some incredible stroke of bad luck you ever get questioned about your parts count by a badge, you should say that you bought it that way at a gun show and haven't made any modifications to it.

 

[Mike1234567]

Regardless of who has the burden of proof it may still cost you time and money in court. Is it worth it (to you) to take that chance?