Legality of selling gun with altered serial #

[McCall911]

This is academic to me because I don't plan on going anywhere near this gun, but I recently saw an online ad for a gun from which the seller said a previous owner had tried to scratch off the serial number. Just an opinion, but this sounded very un-kosher to me.
Does anyone have any facts about whether it would be legal to sell this gun?

 

[Pete D.]

hmmm

Not 100% sure but.....it may be illegal even to possess such a gun much less try to sell it.

Pete

 

[McCall911]

That's what I was thinking also, Pete.

 

[Sam1911]

The US code says, in Title 18, Part 1, Chapter 44, Section 922(k)

(k) It shall be unlawful for any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered or to possess or receive any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.

So that would be a big no-no.

 

[OldMac]

AND

and has, at any time, been shipped or transported in interstate or foreign commerce.

I wonder if this means that it is okay to have as long as it has never moved across state lines after it's SN was damaged? If the "at any time" refers to before it was altered, then this qualifier would limit the legality of ownership to only those firearms produced in your state. Chances are it has moved around.

 

[Shadow 7D]

Its a federal law, read the interstate commerce clause in that last part
trust me, unless you bought if from the factory down the street and had the entire town to back you up, that would only let you walk out of court a free man, you would still be going to trial.

at a gun store, from 'joe'
it moved over state lines
distributors, other owners
and you would have to prove the negative, that it had never moved lines, or your construed guilty by possession.

 

[Sam1911]

I wonder if this means that it is okay to have as long as it has never moved across state lines after it's SN was damaged? If the "at any time" refers to before it was altered, then this qualifier would limit the legality of ownership to only those firearms produced in your state. Chances are it has moved around.

That phrase is a nod to the "Commerce Clause" which is by what guise the Federal government takes on the authority to regulate these things in the first place.

The commerce clause is understood by the federal government to cover ANY item, or PART of an item, that was EVER transported across state lines.

So, yes, if you have a gun that you didn't make yourself -- arguably, from steel you smelted from ore you dug in your state -- it is subject to the commerce clause, and therefore subject to all the provisions of the various Titles in the Code.

...

You may want to search on some of the state "gun freedom" laws that have recently been passed in places like Montana. They are stating that a firearm that was made entirely in that state and which has never passed out of that state is subject to NO federal firearm laws. So, in theory, you could build an unregistered short-barreled rifle or a machine gun -- out of materials sourced from within the state, etc., -- and it would be legal. The feds say there is no way to do this, so they would treat it as a federal law violations.

 

[McCall911]

Thanks for the replies, all. So it's about like I figured.
The guy who's trying to sell it claims to have been selling guns for umpteen years, so he should know better. As for me, I wouldn't even want to be in the same room with that gun!

 

[geekWithA.45]

and has, at any time, been shipped or transported in interstate or foreign commerce.

Bluntly, this is a magical incantation with which Congress claims jurisdiction over anything it wishes, pursuant to the perverse ruling of Wickard v. Filburn 1941.

Normally, the incantation is in the form "and has, at any time, been shipped or transported in or affected interstate or foreign commerce.", but since the entire manufacturing and ffl system is federally regulated, it's inherently "interstate or foreign commerce".

 

[Sam1911]

Yup. That gun was made from parts which were forged out of steel that was smelted here from ore I dug in the back yard, fired by coal I bartered for from my neighbor.

My milling machine runs on solar-produced electricity from my off-the-grid power plant.

The stocks are from a tree I cut down in the back 40.

But, I had to buy a bottle of dykem and some cutting oil ... so, this gun has affected interstate commerce and as such is federally regulated.

 

[animator]

If the serial number is still readable, or if the rifle has some accompanying paperwork that has the serial number recorded, you can make a "new" serial number anywhere on the receiver that won't be covered or obscured by things like furniture or other accessories.

That number must be the exact same as the original serial number, and it must be reproduced within the ATF requirements for minimum text height and depth. But as long as it's on there, and it meets the requirements, it is legal.


Technically, this process would fall out of the legal guidelines, because the serial number has obviously been altered *before* being reproduced somewhere else on the rifle. But it is legal to change the position of a serial number and remove the original, if the proper steps are followed...

 

[Bubba613]

The magic phrase was "tried to have the serial number removed." That means it is still there, presumably still visible so it is fine.
I have had any number of guns through the shop like that. In every case the number was clearly visible although some idiot had tried to use a knife to scratch it off.
It is a lot harder to remove a serial number than people think.

 

[Sam1911]

Be VERY careful with that advice, animator.

The ATF has contradicted themselves DIRECTLY on this matter and have admitted a judge would have to make the final decision.

Here (http://hkpro.com/forum/showthread.php?102337-Legality-of-moving-serial-number-on-SL8-G36-conversion) is a thread from another forum on this very question.

The ATF letter posted therin contains the conclusion:

Consequently, ATF does not authorize anyone, including gunsmiths, to remove or relocate serial numbers for any purpose including refinishing, mounting sights, or fitting custom stocks or grips. It is irrelevant that you would re-mark the receiver with the original serial number.

 

[Sam1911]

It is a lot harder to remove a serial number than people think.

Yikes. But it isn't that hard to produce enough damage that some LEO feels it is "altered" or "obliterated."

I'm sure arrests are rare, but I'd feel VERY tense if a sheriff or police officer was inspecting a gun of mine that had obvious signs of attempted serial number tampering.

It probably comes down to degrees, though. A little scratch here or there might not be an issue. Someone taking a file to it and getting some of the numbers down to less than the ATF required depth ... watch out.

 

[animator]

Interesting. I've seen letters that state the exact opposite, stating it is acceptable to move a serial number, as long as it is within specific guidelines. I'm guessing consistency from the ATF is asking a bit too much.. . lol.

 

[Sam1911]

I've seen letters that state the exact opposite

Yes, and that was part of the point of that thread I linked.

One custom builder had letters giving him permission to move serial numbers. One had letters REFUSING any permission to do the same. When called on the discrepancy, the ATF said it would be up to a judge to figure out which was most valid.

 

[Carl N. Brown]

sounds like jail bait (might just be "scratch and dent" but)

The original post says "....tried to scratch off the serial number...." which sounds like failed to scratch off the serial number. (I would not trust a desciption like that: a photo would be useful.)

If the original serial number is legible at all, it should not be a problem. If the serial number is actually obliterated, even one letter or digit illegible, it is jail bait.

This could happen in an attempt to destroy the serial number, or (if just scratched but still legible) could have been the result of a crude rust removal, clumsy repair or even an accidental drop.

If a previous owner had actually made a serious attempt to remove the serial number, the motivation could have been to hide the origin of a stolen gun or straw purchase, or some other sinister purpose. An obliterated serial number is a red flag to LE and raises suspicions. Stamping a serial number alters the metal underneath; even if filed and ground smooth, with the proper etching technique the original number can often be made visible.

 

[Bubba613]

Yikes. But it isn't that hard to produce enough damage that some LEO feels it is "altered" or "obliterated."

I'm sure arrests are rare, but I'd feel VERY tense if a sheriff or police officer was inspecting a gun of mine that had obvious signs of attempted serial number tampering.

Uh oh! The internet bogeyman rears his head. No, this has never happened before. No, no one really thinks it might. No, there is no law against it. But, oh noes! You don't want some bad-tempered cop with an anti gun attitude looking at your gun! You never know WHAT he might do! He might just decide you're a felon and shoot you on the spot.
Better be safe than sorry. It isn't the odds, it's the stakes. You wouldn't want to be to the test case, would you? [add cliche here].

And we're supposed to be advocates of liberty? How do you advocate for liberty when you quake every time some mythical LE in some mythical situation arises?

 

[Sam1911]

Wow. Guess you're right. I sure won't argue against that kind of thinking.

FREEDOM!!!

But, just the same, I'm not going to buy a gun with a serial number that's been noticeably scratched through. Seeing as there is a law against that, and all.

You never know WHAT he might do! He might just decide you're a felon and shoot you on the spot.

I would never expect to be shot on the spot. I might not be too surprised to have the gun confiscated, the ATF involved, and to have a roll of the dice on whether or not I'd be charged -- all depending on how successful an ATF agent feels the previous owner was at trying to obliterate the number. At the least, I'd be very inconvenienced and would want to be paying a lawyer to help me fight the charges.

WHY face the hassle? There's lots of guns in the world. Buy one that some clown (felon? idiot? both?) didn't try to scrub?

 

[merlinfire]

Wouldn't that stink? Getting a letter from the ATF saying "go ahead, you're fine" and then later taking the guy to court because they second-guessed themselves.

 

[Sam1911]

Wouldn't that stink? Getting a letter from the ATF saying "go ahead, you're fine" and then later taking the guy to court because they second-guessed themselves.

Yes. I believe that the various folks who have found themselves in this situation have all felt most strongly that it "stinks."

 

[Old Shooter]

Besides the problems listed above, there are too many guns out there without that problem for me to go anywhere near it. I can just imagine the local State Police officer taking a look at it and saying "turn around and put your hands behind your back sir"

Begining of a really bad day....

 

[Carl N. Brown]

Repeating serial number without removing original serial number stamp, OK or not?

Scratch this: When the new adjustable sights for the M1 carbine covered the serial numbers on some of the guns, the military would restamp the serial number in a visible place. Of course, the original stamp could be verified by removing the sight.

I got that wrong. Joe in fla in Post #31 noted: "I have a large number of M-1 carbines with the SNs obscured by adjustable sights and NONE of them has had the SN relocated!" Checking around, the "some of the guns" turned out to be National Ordnance and Santa Fe (post WWII commercial makers and not GI) who stamped their only serial number on the left front side of the receiver. (Reference book showing receiver markings show no serial number below the rear sight on these makers.)

 

[garymc]

I remember reading the ad and noticing that the gun wasn't getting many bids. As I recall from the picture, the number was still visible. The seller suggested that the scratches were the result of someone trying to remove the number. I don't think he knew, but it would be a huge coincidence that random scratches were concentrated in that area. Anyhow, also jumping to conclusions, I would suspect the attempt to remove the serial number was done by a person who stole it, or knew it was stolen, or thought it was.

 

[Sam1911]

Repeating serial number without removing original serial number stamp, OK or not?

There doesn't seem to be any issue with adding a stamp in some other location. The question appears to entirely be in whether or not you can ever remove, obliterate, or alter the original stamping.