My Challenge to the Gun Control Act of 1968

[EOTechRulesAll]

I spoke with an ATF officer today and he said it sounds like I've done my homework but it is not his call to make and it is really a court matter. I've spoken with some NRA legal folks and they said (what I already figured) that I would not be allowed to file anything against the government due to lack of standing...

One of the most crucial parts of the Gun Control Act of 1968 reads-


d) The Secretary shall authorize a firearm or ammunition to be imported or brought into the United States or any possession thereof if the firearm or ammunition --

(1) is being imported or brought in for scientific or research purposes, or is for use in connection with competition or training pursuant to chapter 401 of title 10;

(2) is an unserviceable firearm, other than a machinegun as defined in section 5845(b) of the Internal Revenue Code of 1954 (not readily restorable to firing condition), imported or brought in as a curio or museum piece;


(3) is of a type that does not fall within the definition of a firearm as defined in section 5845(a) of the Internal Revenue Code of 1954 and is generally recognized as particularly suitable for or readily adaptable to sporting purposes, excluding surplus military firearms, except in any case where the Secretary has not authorized the importation of the firearm pursuant to this paragraph, it shall be unlawful to import any frame, receiver, or barrel of such firearm which would be prohibited if assembled; or



I first asked the ATF by what authority does the secretary decide and what criteria are used, and who is to declare what is "generally recognized" as a sporting purpose...

He then went on to list the "objectionable features" such as the pistol grip, bayonet mount, ability to accept a detachable magazine in excess of ten rounds, a folding stock, etc...

I then immediately pointed out that as the Ohio State Supreme Court already ruled in a case that resulted in the overturning of the Columbus assault weapons ban, a rifle that will accept a detachable magazine will accept one of any capacity, and that the capacity of the magazine does not determine anything...

The Ohio State Supreme Court found that the local laws in Columbus which banned any semi-automatic rifle that could accept a detachable magazine in excess of (I want to say 10 or perhaps 20 rounds) was vague, arbitrary, and violated the equal protection offered by the Constitution, in that a man could have a rifle such as a Mini-14, which came with a 5 round magazine, and never even know that 30 round magazines existed, and yet he would still be held liable. It was ruled, by the Ohio State Supreme Court, that the rifle has no bearing on the magazine and that the ability to accept one detachable magazine automatically means it has the ability to accept any detachable magazine, made by anybody, even years after the gun was designed and made with whatever original magazine it came with.

Anyway, of course that is just in Ohio and has no effect on a national level... However...


Next I asked the ATF officer, "If those objectionable features are the criteria by which a weapon, say a semi-automatic Galil, is kept from being imported, and the text of the law says "readily adaptable" for a sporting purpose, and the presence of those features makes them be classified as 'un-sporting' then all that is needed is the ability to remove them, not even the actual act of removing them... If they have the potential to be readily adapted for a sporting purpose, meaning the pistol grip is actually able to be taken off, the folding stock can be replaced with a fixed stock, the bayonet mount can be removed, then they have the characteristic of being readily adaptable... Nothing in the law says they must be adapted to be imported; it simply says that they must possess the quality of being able to be adapted."


He told me that it seems very sound/solid, but he was not the person to debate the matter with, and that it would have to obviously be a matter raised in some legal/court venue.

Since the only criteria the ATF use to determine "sporting nature" of a weapon is a list of cosmetic features, and the law says if the weapon can be readily adapted to be "sporting" then rifles with those features, EVEN ALL OF THOSE FEATURES, can be imported (by the letter of the law), so long as enough of those features can be easily removed... According to the law they don't actually need to be removed, just having the potential to be easily removed.


That is what the law states...

 

[EOTechRulesAll]

Just a bit of history-

http://www.stephenhalbrook.com/lawsuits/firearms.html

July 15, 1998

"ASSAULT WEAPON" BAN IN COLUMBUS, OHIO,
RULED UNCONSTITUTIONAL


The "assault weapon" and high capacity magazine bans in Columbus, Ohio, have been declared unconstitutional by a federal appellate court. This decision nullifies similar bans with identical language, such as that in Cleveland and other cities.

On July 15, 1998, the U.S. Court of Appeals for the Sixth Circuit, sitting in Cincinnati, Ohio, declared the Columbus "assault weapon" ban unconstitutionally vague and a violation of equal protection of the law. Judge Suhrheinrich wrote the opinion. Peoples Rights Organization, Gerald Smolak, and Dennis Walker, who challenged the law, are represented by Stephen P. Halbrook, who argued the case.

The court held two grandfather clauses violative of equal protection. Under these clauses, the only persons allowed to possess assault weapons and high capacity magazines were persons who registered assault weapons under the old ordinance previously declared by the Court of Appeals to be vague. The court invalidated all five of the definitions of "assault weapon" to be unconstitutionally vague.


....

The court proceeded to find all of the definitions of "assault weapon" vague. The first definition is "any semiautomatic action, center fire rifle or carbine that accepts a detachable magazine with a capacity of 20 rounds or more." The court explained:

record indicates that any semiautomatic rifle that accepts a detachable magazine will accept a detachable magazine of any capacity which might exist, as it is the magazine, and not the rifle, that determines capacity. Therefore, anyone who possesses a semiautomatic center fire rifle or carbine that accepts a detachable magazine is subject to prosecution so long as a magazine exists with a capacity of twenty rounds or more. Since the ordinance contains no scienter requirement, an owner's complete lack of knowledge as to the magazine's existence is of no consequence.

One plaintiff has a hunting rifle that has a detachable magazine with a capacity of four rounds. He has never possessed or seen any other magazine which would fit his rifle. However, his rifle would accept a detachable magazine with a capacity of twenty rounds or more if one has ever been manufactured. He "would face criminal penalties in the event such a magazine is discovered. Due process demands more than this."

The second definition of "assault weapon" is "any semiautomatic shotgun with a magazine capacity of more than six rounds." Reversing the district court, which upheld this provision, the court found it vague:

Shotgun rounds are available in different lengths. Rounds of a short length may cause a shotgun's magazine capacity to exceed six rounds. Conversely, rounds of a longer length (which may be all the owner possesses or is aware of) will result in a capacity that is less than six rounds. This provision is a trap for the unwary. It imposes criminal liability regardless of whether a shotgun owner knows of the existence of shorter length rounds. Hence, we find this definition unconstitutionally vague.

....

....

 

[EOTechRulesAll]

I am going to have to make a challenge to a similarly vague part of the Ohio Revised code. Technically any magazine over 30 rounds for a center-fire weapon is illegal in Ohio, but the police allow you to have and use 75-100 round drums and generally any magazine over 30 rounds, so long as you don't do anything violent with it. Strictly speaking, you're not supposed to have them, but unless you use it to rob a bank or something else along those lines, you won't be charged...

However, the scary part is they may try to treat possession/use of a magazine over 31 rounds, as an NFA violation! As they say that the weapon becomes fully automatic once you have a magazine over 31 rounds in it.




9.68 Right to bear arms - challenge to law.

http://codes.ohio.gov/orc/gp9.68

The exact wording-

(E) “Automatic firearm” means any firearm designed or specially adapted to fire a succession of cartridges with a single function of the trigger. “Automatic firearm” also means any semi-automatic firearm designed or specially adapted to fire more than thirty-one cartridges without reloading, other than a firearm chambering only .22 caliber short, long, or long-rifle cartridges.



A semi-automatic AK-47 of the SAR-1 Romanian sort, was not designed specifically to fire more than 31 rounds, it was designed to accept detachable magazines, meaning it will accept any detachable magazine that will fit any AK variant that shares in similar design specifications. Likewise they are not specially adapted to accept a magazine of more than 31 rounds, they are designed to accept a detachable magazine... The magazine, as already ruled by the Ohio Supreme Court, NOT the rifle, determines the capacity...

I believe I should contact the State Attorney General in the next few days or so, or at least seek some legal advice and then mount a challenge to that aspect of the law in Ohio. Even if I am going to get it tossed out on the lack of standing, it might be worth it, eh?

 

[Zundfolge]

I first asked the ATF by what authority does the secretary decide and what criteria are used, and who is to declare what is "generally recognized" as a sporting purpose...

Precedent has already defined "Sporting Purpose" to mean hunting or Olympic style target shooting (bullseye, free pistol, etc).

The argument that so-called "Assault" style rifles should be considered Sporting Purpose because they are used in Hi Power and practical shooting has been clearly and definitively shot down (pardon the pun).

 

[EOTechRulesAll]

That's not my point, my point is that the officer admitted they use a criteria based upon features (such as the pistol grip, etc), and the law states if they are -READILY ADAPTABLE- for sporting purpose, they are okay.

The ATF defines sporting as "lacking the bad features" -so it would seem- and so as long as a gun's "bad features" are merely capable of being removed, it should be fine to import under the law and due to what the ATF considers sporting/not-sporting.

 

[Zundfolge]

generally recognized...particularly suitable...readily adaptable


All poorly defined "weasel words" ... the point is the '68 GCA gives the ATF the power to define "Sporting Purpose" at whim and not have to back up their decision with any sort of fact or reason.

Stop trying to apply logic, reason and the law to an agency that is above the law and can create law by fiat.

 

[CU74]

Let's see if I have this right......

I spoke with an ATF officer today

Based on a conversation with AN "officer" at the ATF you are gearing up for a legal battle to change the law ?

I don't think I have ever run across anyone with your trust in the ability of any single member of F-Troop to understand the law. If his/her job description includes answering the telephone in the ATF office, it probably doesn't contain very much about being required to be a firearms law expert.

Did you always have this desire for banging your head against a wall or is this something caused by smelling too much Hoppes #9? You didn't spend last night at the Holiday Inn Express, did you?

 

[EOTechRulesAll]

If it matters for anything I've spoken with NRA ILA officials before, and I've spoken with others who say it sounds solid, except, again, I have NO STANDING...

I'm not going to import a mess of AK-47s and Galils, go show the police, so they can arrest me and then I can have the standing to challenge the law.

However, right now I am actually in the initial process of challenging the Ohio revised code that speaks about a full-auto weapon being any semi-automatic weapon that has the potential to fire 31+ rounds. Step one as far as I see it was to contact the attorney general and inform him that the revised code is in blatant violation of an Ohio State Supreme Court ruling...

I have done that, now all I need to do is wait for the call-back, then take it from there... I am much more confident of success in Ohio with state laws, than of getting anywhere on the national level by dealing with the ATF or whoever.

Does anybody doubt the validity and logic of my Ohio revised code argument???