Pre ban hi cap mag ID

[jim in Anchorage]

I moved to Alaska from NY in 1994 so I know all my 10+ mags that I brought with me are pre-ban. Since I left NY they have outlawed all but pre ban 10+ mags. Those and only those may be possessed. Question is if I moved back how would anyone know they are pre-ban and not post 2004 production?

 

[tyeo098]

Question is if I moved back how would anyone know they are pre-ban and not post 2004 production?

And therein lies the problem.

They won't. Aside from design changes and/or metallurgy its more of an honor system.

 

[jim in Anchorage]

Thats what I figured. It would be interesting to know if there is any legal precedence on this. I know my honer is good, not so sure about NY.

 

[Quiet]

In NY, burden of proof that the magazines are pre-ban is upon the possessor not the state.

 

[Rmeju]

^^ To the above poster: Do you have a cite for this? Is it a criminal law? Or some kind of civil forfeiture law. I only ask because shifting that burden to a defendant in a criminal case is patently unconstitutional, at would be an easy spanking to administer for the NRAs/Alan Guras of the world.

 

[splithoof]

^^^But, do you want to be the test case for something like that? That kind of activity sounds very expensive.

 

[Frank Ettin]

In NY, burden of proof that the magazines are pre-ban is upon the possessor not the state.

...shifting that burden to a defendant in a criminal case is patently unconstitutional, at would be an easy spanking to administer for the NRAs/Alan Guras of the world.

[1] The presumption of innocence of course doesn't come from the Constitution, but arguably it may be a matter of due process.

[2] But the magazines being pre-ban sounds like an affirmative defense. Evidence that the magazines were pre-ban would also be within the province of the defendant. So it would appear that at least the defendant would have the burden of putting forth evidence that the magazines were pre-ban.

 

[HankB]

[2] But the magazines being pre-ban sounds like an affirmative defense. Evidence that the magazines were pre-ban would also be within the province of the defendant. So it would appear that at least the defendant would have the burden of putting forth evidence that the magazines were pre-ban.

Are you sure of this?

IANAL, but if authorities were to "arrest" the magazines (the way they sometimes do cash they "suspect" of being drug related) I can see where it might be up to the individual to "prove" that they were pre-ban mags if he wanted to get them back.

But if The State were to criminally charge him with possession of illegal pre-ban magazines, it would be up to them to prove they WERE pre-ban, in much the same way they'd have to prove the white powder they seized from a suspected druggie actually WAS an illegal narcotic rather than Splenda sweetener.

 

[Frank Ettin]

...But if The State were to criminally charge him with possession of illegal pre-ban magazines, it would be up to them to prove they WERE pre-ban, in much the same way they'd have to prove the white powder they seized from a suspected druggie actually WAS an illegal narcotic...

There's a fundamental difference. In the case of drugs, what it is can be determined by chemical analysis. Therefore, it's something that can be determined by the prosecution.

In the case of a pre-ban magazine, if the only difference between a pre-ban and illegal magazine is when, where and how it was acquired, the defendant would generally have that information.

Of course, in a few prosecutions for high capacity magazines, it hasn't worked that way. In California, the exact crime is selling, loaning, manufacturing or importing high capacity magazines -- not mere possession. There have been a couple of arrests for importation where, a someone has been observed by agents buying high capacity magazines at a Nevada gun show, and then the subject was picked up bringing them into California.

And of course, it would be no problem to prove the magazines weren't pre-ban if there were for a model gun which was not manufactured before the ban date.

 

[X-Rap]

Many post ban mags are date stamped and ban hi caps are stamped LE/Mil only so that along with what has been said of obvious ban/post ban introduction of caliber or model it shouldn't be that hard to show pre ban manufacture if your gun falls under any of these examples.
Since we don't know exactly what guns you have you might get a hold of the manufacturer and see if they have a list of distinguishing marks/stamps that can differentiate between the different time frames and then keep a copy of any such correspondence as proof of pre ban date.
The serial no. range on guns is useful as well and should be kept on hand in case there are questions there.

 

[Rmeju]

[1] The presumption of innocence of course doesn't come from the Constitution, but arguably it may be a matter of due process.

There's no argument about it. Presumption of innocence was long ago settled. The state bears the burden of proving every single element of every crime beyond a reasonable doubt, and may not ever shift that burden to a defendant.

[2] But the magazines being pre-ban sounds like an affirmative defense. Evidence that the magazines were pre-ban would also be within the province of the defendant. So it would appear that at least the defendant would have the burden of putting forth evidence that the magazines were pre-ban.

This does not sound like an affirmative defense to me, although I would have to see both 1) the law, and 2) how it operates. Laws can purport to make an element of a crime an affirmative defense (here by using semantics to say "we're not forcing you to prove you didn't commit a crime, we're forcing you to show you did something... namely make a certain purchase before a certain date), but the courts will not usually stand for that. I would have a very serious question about any law that would require you to prove you didn't do something wrong. This is rank burden shifting, unless there's something serious that I'm missing.

Affirmative defenses are more like "Yeah, I did that, but here's the reason I'm not guilty anyway".... Self-defense can fall into this category (although I belive only one state chooses force D to show that in the case of SD). Yes, I was standing over that dead body, and yes I shot him, but he was trying to kill me." That is an affirmative defense.

Asymmetry of information might shift the burden in a civil case, but I can't rememeber ever hearing of that in a criminal case. Even if it was an affirmative defense, the state cannot make the defendant carry any burden of proof greater than preponderance of the evidence (more likely than not, or 51% likely). Since the state will rarely, if ever, have even the slightest shred of evidence to rebut that defense (and certainly would have no such evidence in the OP's case) it would be up to the defendant's credibility... or maybe practical considerations of how anti-gun the judge or jury was.

Nothing but respect for you. I hope I didn't come across too strongly, but this stuff gets me fired up!

 

[Frank Ettin]

...Asymmetry of information might shift the burden in a civil case, but I can't rememeber ever hearing of that in a criminal case...

I'm not sure myself and haven't done the research. And remember, it might not so much be a matter of burden of proof as burden of producing evidence. Even in a self defense case, the defense might have the burden of showing prima facie justification, shifting the final burden of proof beyond a reasonable doubt to the prosecution.

As far as I know, there haven't been a lot of high cap magazine prosecutions.

 

[Rmeju]

^ I hear you on that. I guess the 800 lb. gorilla in the room is that it's pretty likely that in these kinds of cases, neither side would be able to produce any evidence, except for the defendant producing his own testimony. When you've got a situation like that, the party with the burden is probably going to lose.

 

[wildbilll]

What if someone went to a gun show and purchased some of those AR 30 rounders that are obviously pre-ban; like the ones that were from the company that got kicked out of manufacturing for poor inspection processes? That would seem to establish a date, and those are the cheap ones at the shows as they seem to be tainted even though they work just fine.

Also, what if someone updates the mags with newer followers, springs, floorplates? Does that make them illegal?

 

[medalguy]

That's exactly what I was wondering. I was going to help out a fellow shooter by trading him some older M16 mags I have for his newer mags since he's moving to a "non-free state" but he declined the offer since I had upgraded my older mags with newer followers and he couldn't prove the mags were pre-ban.

So consider this. I don't think there's any requirement to date mags made today, so if a manufacturer started making mags today without LE markings or dates, and the mags were not maker marked, how could it be proven one way or the other that these were pre-ban or new manufacture?

So, is it the case that if you lived in one of these horrid states that restricts your right to own property, the charge of possession of a pre-ban mag would be considered guilty until or unless you could prove you had purchased the mags prior to the ban date? I buy mags all the time, and I can't prove when or where I have bought ANY of them except the new mags that came with handguns I've bought. Boy, what a mess we've allowed our politicians to put us into.

 

[splithoof]

^^ If he moves to a state such as California, he runs the risk of violation if he imports into the state any magazine capable of holding more than ten rounds, with very few and limited exceptions.

 

[jim in Anchorage]

I should add the gun is a pre-ban mini 14 and the mags are aftermarket of course since Ruger didn't sell them back then. Not a mark on them.

 

[mdauben]

In the case of a pre-ban magazine, if the only difference between a pre-ban and illegal magazine is when, where and how it was acquired, the defendant would generally have that information.

Do most gun owners actually have sales reciepts for fire arms accessories like magazines that they purchased 20 years ago? Magazines that may well have been purchased before anyone ever heard of a "hi cap magazine ban"? I know I have high cap magazines from both my G17 and G21 that I bought back then, that I don't have any documentation of date of purchase. I doubt many people do.

 

[Striker]

Do most gun owners actually have sales reciepts for fire arms accessories like magazines that they purchased 20 years ago?

I do, especially those purchased just prior to the ban going into effect, as well as those purchased after the ban expired, so that if it is ever reinstated, I have proof.

YMMV

 

[splithoof]

Glock magazines that I have seen have changed over the generations, at least for the .45ACP. It wouldn't be very hard to figure it out.
I would advise keeping any and all sales records from all purchases related to firearms, ammunition, reloading, etc., locked up for future reference. It might make the difference between a relatively small council expense and a very big one.

 

[bergmen]

At least as far as California is concerned, here is the skinny on large capacity magazine possession (from Calguns.net):

http://www.calguns.net/calgunforum/showthread.php?t=387409&highlight=hi-cap+magazines

Items (2) and (3) are most important.

Dan

 

[Frank Ettin]

At least as far as California is concerned, here is the skinny on large capacity magazine possession...

But everyone note well -- that is just California.

Other States that have laws regarding large capacity magazines might well be different. If you're somewhere other than California, California law is irrelevant

 

[David E]

It depends on the gun and state law.

Is there a grandfather clause still in effect? If not, then the discussion is moot.

Did the gun exist pre-94? If you have a snazzy new XDM or M&P, those are easy to date!

As mentioned, Glock mags have seen several variants over the years. I'm sure someone somewhere (not on your side) has a list detailing what variant was introduced when.

I'm not a lawyer, but it's unlikely that the defendant must prove his innocence. The burden of proof has always been on the prosecution. Then again, the Constitution is regarded as an obstacle to be overcome by some folks, so who knows without reading the specific law.