Snowflakes in Hell

SayUncle discovered Guns Magazine were mistakenly making an AOW:

On page 58, is a similar pic with a note that says something like equipped with a surefire flashlight and forward grip, it makes a fine home defense weapon. Trouble is that ATF holds that attaching a vertical forward grip to a pistol makes the pistol an Any Other Weapon (AOW). The manufacture of an AOW (which you would do simply by putting a foreward grip on a pistol) requires payment for a $200 tax stamp and an extensive background check.

It goes to show how easy it is to violate federal firearms law.  We’re often told that gun control doesn’t affect ordinary gun owners, only criminals and nutjobs.  Well, sorry, that’s bullshit.  It’s easy to become a felon in this hobby if you don’t know what you’re doing.  And when I say don’t know what you’re doing, I mean that you have a better knowledge of the laws in this area than the average lawyer.  That’s a tall order for any hobby, and I can’t think of too many others that are the legal minefield ours is.

Deodand again.

Jeff Soyer asks:

So why isn’t Nutter in jail?

It’s something I’ve been hearing a lot of, but the short answer is that the law has to be enforced before possible civil and criminal penalties come into play, and as best as I can tell, the city ordinances aren’t being enforced yet.  There’s no penalty for passing a law in violation of preemption under Pennsylvania law, so the act of merely passing a gun control ordinance is not itself illegal in the sense that you can go to jail for violating it.

Penalties don’t come in until someone attempts to enforce it.  Under our system of government, a law that is unconstitutional is essentially not law, so any arrests made under the Philadelphia gun ordinances would be done under color of law, which opens the arresting officer, and the people all the way up the chain of command, to liability under the Civil Rights Act of 1871.  The Civil Rights Act allows for state and local officials to be stripped of their immunity and to be sued as individuals, rather than in their official capacity.  For local government officials, they may be sued in both their official and personal capacities, since local governments are not considered sovereigns, don’t enjoy sovereign immunity.

There are also criminal penalties, both federal and state, which can apply, but prosecution under these statutes is rare, and when it has happened, it’s been difficult to get convictions.  In order to press criminal charges, either the local Assistant United States Attorney would have to bring charges, or the Pennsylvania Attorney General.  But as with the civil case, the law has to be enforced before there’s criminal liability.

A win for federalism at the Supreme Court.

From Randy Barnett:

UNLESS, Dorf really means that courts should avoid results that HE and those who agree with him believe are morally odiousness, though many Americans may disagree. In other words, judges should follow their own moral views (if they agree with Dorf’s) regardless of how widely accepted those views may be. But this methodology simply places the moral views of judges above whatever independent meaning the text of the Constitution may have. And you will remember from my last post that this is indeed Dorf’s position: “[C]ontrary to conventional wisdom,” he wrote, “constitutional doctrine typically trumps constitutional text – at least absent arguments of sufficient strength to overcome the principle of stare decisis.”

This is a prescription for what Larry Solum has called the “downward spiral” of judicial nominations. If the Constitution has no meaning independently of a judge’s own views of moral odiousness, then everything depends on getting judges who share your views of moral odiousness. But when there is substantial disagreement about what is or is not morally odious at any given time (as there always is about some matters but not others) then this becomes an ugly fight to the death where anything goes, which is exactly what has happened.

Read the whole thing.  There’s more posts on this topic here and here.  I would love to get the left on board with an originalist constitutional consensus, but I doubt they’ll ever be able to accept it.  And why should they?  Progressive thought has largely dominated for the last century, and I don’t see any signs that it’s going to be change anytime soon.  I think George W. Bush’s presidency might have been enough to get them to flirt with the idea, but they are seeing salvation in the possibility of Obama, and I think there’s a good chance they’ll get it.  Constitutionally limited government is a bummer when you’re in power.

Randy Barnett has a post up which is lengthy, but well worth the read, on new originalism vs. the living constitution.  It does contain a little bit about the second amendment, since I know most of us are interested in that here.  It amazes me how good of a litmus test your views on that particular topic are in terms of how you view not only constitutional interpretation, but on the proper relationship between a people and its government.

If you have some time to read, over at The Volokh Conspiracy, Ilya Somin and Orin Kerr have been debating the proper role of judicial review in our republic.  It’s well worth a read.

I tend to side with Professor Somin in this instance.  The idea of legitimacy through “consent of the governed” has always struck me as problematic, because I think the purpose of government, first and foremost, has to be the mutual protection of rights.  A “consent of the governed” legitimacy model surmises that the democratic process offers any meaningful consent.  I did not consent to have John McCain and Russ Feingold limit my rights to speak out against them in any meaningful way, yet all three branches of the federal government have upheld this, despite the fact that I believe the majority of people would recognize it was a violation of freedom of speech if it were explained to them in detail.

I do think the judiciary needs to be true to the original meaning of the law, and not impose wild and inconsistent theories about legal interpretation.  I want to understand the biases and philosophies of the judges we put onto the bench, because I don’t think there’s any theory of legal interpretation that will act as a bulwark against personal bias that will still preserve the court’s role as a check against the other two branches of government.  The judiciary needs to have an active in here, and ought not make a presumption that those branches will enact constitutional laws.  I think conservatives need to beware in restraining the judiciary, they don’t go so far as to make it a gaggle of “yes” men.

With all the talk about the Iowa Caucuses, we can’t, of course, forget about the important matters.  It looks as if Britney Spears has been committed!  Now, while I’m not one worry too much about whether celebrities live or die, I wouldn’t be particularly unhappy if we could end this huge national trauma by Britney offing herself.   But as Bitter was wondering earlier, can she even buy a gun?

It has now emerged that she is reportedly being held under a so-called “5150 hold” within a unit at Cedars Sinai hospital in Los Angeles, according to TMZ.com.

A “5150″ order means staff believe there’s evidence she is a danger to herself or others. The California order allows a clinician or officer to involuntarily confine a person, and requires signs of mental disorder and/or grave disability.

5150 holds are observational, and thus don’t qualify you for a firearms prohibition under federal law, but California law is different.  Under California law, you are not permitted to possess or purchase a firearm for a period of five years after your commitment, unless you request a special hearing to have your rights restored.  Now, if it is determined that Britney is mentally disturbed, and the state decides to pursue a 5250 commitment, that is considered an involuntary commitment under federal law, and she would be barred for life (until HR2640 becomes law, that is, and there is a process for restoration of rights).  California law doesn’t treat 5150 or 5250 commitments differently for the purposes of firearms possession.

Of course, that’s just the law.  Would you sell that nutty woman a gun if you had a gun shop?   I wouldn’t either.

Armed and Safe is quite correct to point out that my Governor is a gun banning turd, but I did want to highlight something else he mentioned:

Alright, I have a big problem with this, even before we get to the “fight for three ‘gun-control’ laws” part. Whenever I see calls for “tougher penalties for shooting at a police officers [sic],” I get the impression that we are expected to believe that the lives of police officers are implicitly more valuable than the lives of us “Average Joes.” That’s a concept I utterly reject.

As long as proper protections are in place for self-defense, and the law requires knowledge that the person the actor reasonably knew, or should have known, the person he was shooting at was a police officer, acting in his official capacity, I have no problem with a law like this. But it’s not because I believe police should be considered by law to be a special class of “super citizen”.

The legal theory behind why shooting at, or murdering a police officer is a more serious offense is because it’s more than just an attack against another person, but an attack against civilized order. Riotous behavior is really, in theory, no more than a property crime in most cases. These days you really never see the authorities using deadly force on rioters, but in most states, it’s perfectly lawful to use deadly force on people engaged in riotous behavior. Under Pennsylvania Law:

The use of deadly force is not in any event justifiable under this subsection unless the actor believes that the use of such [deadly] force is necessary to suppress a riot or mutiny after the rioters or mutineers have been ordered to disperse and warned, in any particular manner that the law may require, that such [deadly] force will be used if they do not obey.

The reason for this is similar to the reason for making the penalty stiffer for shooting at a police officer.  Although rioting is typically a property crime, it is more properly a crime against order.  Civilization is but a thin veneer, and it doesn’t take much scratching to reveal the ugliness underneath, and our laws have tended to reflect that.  It is for that reason that we ought to treat assault against a law enforcement officer more seriously than we do other types of assault, not because they are a protected or privileged class of citizen.

So Uncle sent me a sneak peek at this article yesterday, which prompted me to look up some Illinois gun laws, and let me tell you, I’m really glad I don’t live in Illinois.   What appears to have happened is this guy had his FFL revoked, and decided to sell off his inventory in private sales, which is legal in Illinois, provided that you aren’t “in the business” of selling firearms.  Illinois law does specifically mention liquidating a collection as not being “in the business”.  But even so, operating as a dealer without a license is a misdemeanor under Illinois law for a first time offender.   This article states that he is charged with a Class 1 Felony.

But what did this guy do?  Well, he didn’t apply the waiting period required under IL law, which is three days for a pistol, and 24 hours for a long gun.  Apparently you have to do this even in a private sale.  Violation here is a Class 4 Felony in Illinois.   But what got him the Class 1, the most heinous of felonies?   Well, it turns out a recent law makes it a Class 1 Felony if you don’t ask to see the other fella’s FOID card before you sell him the gun.

Get that folks?   If you do a private transfer in Illinois, and fail to ask to see the other person’s FOID card, it’s the same as if you pulled out the gun, and instead of handing it over to him, shot him dead.  Illinois politicians apparently feel that selling a gun to your buddy or neighbor, and not asking to see the FOID, is an offense deserves to be up there with murder.

Remember that next time a gun control idiot tells you that most gun owners  aren’t affected by gun control, and that all they want are reasonable laws.

Ahab asks a good question about whether a black powder shotgun would be subject to the National Firearms Act if you were to saw off the barrel to under 18 inches.  I don’t know the answer to that.

I’d suggest calling the ATF, but even if the answer they give you is yes, doesn’t mean they won’t decide to arrest you later.

Dave just won a First Amendment case invalidating part of the Arizona Constitution.   Good deal!  You want my opinion, the whole primary system stinks.  I don’t think political parties should be able to hijack the voting apparatus of the state for selecting candidates, or  the other way around.  That’s just bad public policy.

But I think open primaries tread on the First Amendment’s freedoms of association.  If you’re going to let the state hijack the selection of candidates for parties, you should have to choose a party association.

Personally, I think all the states should do it the Iowa way, with caucuses.  All that stuff should happen outside the structure of the state.  There are ways you can structure ballot rules to be fair to the major parties, and to third parties, without letting every yahoo group onto the ballot.

I notice Larry Pratt keeps bringing up a Pennsylvania case where a man was committed involuntarily for observation under Section 302 of Pennsylvania’s Mental Health Procedures Act. This provision is described as follows:

Section 302 is the part of the Act relating to treatment without consent for observed behavior constituting a clear and present danger to the individual and/or others. The behavior must have occurred in the past 30 days. Under Section 302(a) any responsible party can petition for an involuntary evaluation by stating that an individual may be severely mentally disabled.

Now, it should be noted that for purposes of a federal firearms disability, this section is insufficient. The regulations specifically exempt persons held for observation.

Committed to a mental institution. A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment to a mental institution involuntarily. The term includes commitment for mental defectiveness or mental illness. It also includes commitments for other reasons, such as for drug use. The term does not include a person in a mental institution for observation or a voluntary admission to a mental institution.

But that’s federal. The PA Uniform Firearms Act is also a controlling law:

A person who has been adjudicated as an incompetent or who has been involuntarily committed to a mental institution for inpatient care and treatment under section 302, 303 or 304 of the provisions of the act of July 9, 1976 (P.L.817, No.143), known as the Mental Health Procedures Act. This paragraph shall not apply to any proceeding under section 302 of the Mental Health Procedures Act unless the examining physician has issued a certification that inpatient care was necessary or that the person was committable.

So unless the person actually ends up being involuntarily committed to a mental health institution, there’s no prohibition under federal or state law that prevents him from owning a firearm in the future, unless he’s committed.  It should be noted that Pennsylvania already has a mechanism in place for restoration of rights for commitments and adjudications.  In the editorial I mentioned last, a PA district attorney was quoted as saying:

“I contacted the sheriff and had his license to carry a firearm revoked. And I asked police to commit him under Section 302 of the mental health procedures act and that was done. He is now ineligible to possess firearms [for life] because he was committed involuntarily,” the district attorney reported.

I think that particular DA needs to read the law, because he’s wrong.

I found an error in Pennsylvania’s Consolidated Statues online. Let’s see if you guys can spot it:

§ 6118. Antique firearms

It would be fun if it wasn’t wrong.

This latest in my series on the history of Pennsylvania’s Uniform Firearms Act comes to us from Dec. 7, 1989, P.L.607, No.68, or Act 68 of 1989. This act is what made it a crime to carry a rifle or a shotgun in a vehicle:

§ 6106.1. Carrying loaded weapons other than firearms.

(a) General rule.–No person shall carry a loaded pistol, revolver, shotgun or rifle, other than a firearm as defined in section 6102 (relating to definitions), in any vehicle. The provisions of this subsection SECTION shall not apply to persons excepted from the requirement of a license to carry firearms under section 6106(b)(1), (2), (5) or (6) (relating to firearms not to be carried without a license) NOR SHALL THE PROVISIONS OF THIS SECTION BE CONSTRUED TO PERMIT PERSONS TO CARRY FIREARMS IN A VEHICLE WHERE SUCH CONDUCT IS PROHIBITED BY SECTION 6106.

(b) Penalty.–A person who violates the provisions of this section commits a summary offense.

This is where Pennsylvania law starts to get a bit screwy. A firearm is defined in the UFA as any pistol, revolver, or rifle with a barrel less than 16″ in length, or a shotgun less than 18″ in length, or with an overall length less than 26″ in length. Anything within that can be carried loaded in a vehicle if you have a license to carry firearms, which by this time was issued on a shall issue basis, except for in Philadelphia. Anything outside of that definition, may not be carried loaded in a vehicle, even if you have a license. The exceptions are only for police, military and a few others.

We will start this continuing series with Pennsylvania going from a “may-issue” discretionary issue state, to a shall-issue state. Prior to Act 158, the law read something like this:

Issue of License.–The Chief or Head of any police fore or department of a city, and elsewhere the Sheriff of a County, may, upon the application of any person, issue a license to such person to carry a firearm in a vehicle or concealed on or about his person within this commonwealth for not more than five years from the date of issue, if it appears that the applicant has good reason to fear an injury to his person or property, or has any other proper reason for carrying a firearm, and that he is a suitable person to be licensed.

Act 158 was actually a child welfare bill, that had right to carry attached to it. It fundamentally altered the licensing language to say:

Grant or Denial of License.–Upon the receipt of an application for the license to carry a firearm, the sheriff shall, within 45 days, issue or refuse to issue a license on the basis of the investigation under subsection (d) and the accuracy of the information contained in the application. If the sheriff refuses to issue a license, the sheriff shall notify the applicant in writing of the refusal and the reason. The notice shall be sent by certified mail to the applicant at the address set fourth in the application.

This basically made the state shall issue.  Subsection D spells out the conditions that one must meet to qualify for a license, and they are objective, for the most part.   But, there was a catch:

 (2) In a City of the First Class, a license shall be issued only if it additionally appears that the applicant ahs good reason to fear an injury to the applicant’s person or property, or has any other proper reason for carrying a firearm and that the applicant is a suitable individual to be licensed.

Philadelphia is the only city of the first class in the Commonwealth.  Act 158 specifically exempted Philadelphia from the right-to-carry requirement, and allowed the city to continue to refuse to issue gun licenses to anyone they didn’t sufficiently like.

Act 158 also made provision for sportsman’s permits, for carrying a firearm while hunting, in addition to strengthening the state’s preemption to include ammunition and ammunition components.

I noticed there’s no good summary out there on the legislative history of Pennsylvania’s Uniforms Firearms Act, which is the section of the Pennsylvania Consolidated Statutes that relate to firearms. I thought it would be worthwhile to go through and offer a legislative history of this act from the passage of right-to-carry in 1988 to the present time. I’ll keep updating this post with links to further posts. For the sake of brevity, I will only cover the major revisions to the UFA, and not the more minor ones.

Part 1: Act 158 of 1988 - Right to Carry
Part 2: Act 68 of 1989 - Firearms in Vehicles

This decision seems boneheaded to me.  It would seem to me that there is a fundamental right to seek potentially life saving medical care, absent any specific enumeration in the constitution.

One more example of there being no liberty that is so sacred that it can’t be trampled on in the name of the War on Drugs.

The regulations on armor piercing ammo are among the strangest of the federal firearms regulations. The first is that AP ammo is rather odd in its definition. The ATF defines it as handgun ammunition, but there’s a catch. If any handgun has ever been made in a specific caliber, then ATF considers that the AP ammo regulations then apply to that caliber. That’s why you can’t buy AP ammo for cartridges like 7.62×39 and several others. The 5.56×45NATO is specifically exempted from this, even though there are pistols made for it.

It’s perfectly legal to possess, purchase, sell or shoot armor piercing ammunition. It’s not legal to manufacture or import armor piercing ammunition.

In order to manufacture AP rounds, you have to hold a type 10 FFL (18 USC sec. 922(a)(7)). In order to import AP rounds, you have to hold a type 11 FFL (18 USC sec. 922(a)(7)). If you hold either one of these FFLs, it’s not legal to sell or export AP rounds, except to military, law enforcement (18 USC sec. 922(a)(8)). In addition, if you hold a type 06-08 FFL (manufactures of firearms, importers of firearms, manufactures of ammunition), then you also my not sell AP rounds to the general public.

For regular type 01-03 FFL holders, you may sell or deliver AP ammunition, but it must be entered into the Acquisition and Disposition Record (bound book). So if you have any AP rounds in your possession, that’s ok. But it’s been illegal to manufacture or import new ammunition that’s transferable to ordinary citizens for quite some time, and for the most part, it’s generally unavailable, and certainly not in any significant quantity for most calibers.

Of course, there are also various state restrictions. Pennsylvania prohibits KTW ammunition. NJ and NY have additional restrictions on AP ammo.

Reading some of the comments over at SayUncle’s, I thought it would be useful to talk about the actual statute that is currently responsible for Steve Bailey troubles with the feds:

(a) It shall be unlawful –

(6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter

So straw purchasing basically rests on the fact that it’s considered to be a conspiracy to provide false identification and to deceive the dealer as to the lawfulness of a firearm purchase.

Is Steve Bailey guilty of facilitating a straw purchase? If the security guard remained in possession of the revolver after it was purchased, and it was purchased, with the understanding among the party, that he was the actual buyer, and he would keep the firearm, then it would be difficult for the feds to argue that the buyer made a false statement, and that a straw purchase took place.  He was the actual buyer.

If Bailey at any point took constructive possession of the firearm, then he would indeed be guilty of facilitating a straw purchase. But constructive possession is different than actual possession. He may have held the gun at some point, but this is not unlawful; you can go shooting with someone out of state and use their firearms, even though you might have actual possession, but it’s your friend’s property.   There is one thing about this that’s interesting:

Constructive possession is the power and intent of an individual to control a particular item, even though it is not physically in that person’s control. For example, an individual who has the key to a bank safe-deposit box, which contains a piece of jewelry that she owns, is said to be in constructive possession of the jewelry.

So, even if Bailey didn’t keep the firearm, if it was understood among the party that it was “his”, and he retained access to it, he’s admitted to paying for it, that could be construed as a straw purchase of a firearm, even if it never made it’s way back to Massachusetts with Bailey. The New Hampshire security guard was not the actual buyer, and Bailey, as a resident of Massachusetts, is prohibited by federal law from purchasing a firearm in New Hampshire.

Consider what the 9th Circuit had to say about straw purchasing in US v. Moore:

The straw man doctrine, which is nothing more than a long-standing construction of the relevant statutes, holds that a person violates section 922(a)(6) by acting as an intermediary or agent of someone who is ineligible to obtain a firearm from a licensed dealer and making a false statement that enables the ineligible principal to obtain a firearm. As we said in Perri v. Department of the Treasury, 637 F.2d 1332, 1336 (9th Cir. 1981), “sham or `strawman’ ” purchases occur “when a lawful purchaser buys for an unlawful one.” See United States v. Lawrence, 680 F.2d 1126, 1127-28 (6th Cir. 1982) (defendants who purchase firearms for ineligible foreign citizens violate section 922(a)(6)); United States v. Ortiz-Loya, 777 F.2d 973, 978 (5th Cir. 1985) (same). In Lawrence, for example, the Sixth Circuit found determinative of straw man status that, like Wiley, the transferee (1) acted under the direction and control of the ineligible buyer, (2) purchased weapons selected by the ineligible buyer with the buyer’s money, (3) took a commission that showed agency, and (4) had no intention of keeping the gun for himself.

I would imagine the ATF is eager to find out two things.  1) Whether the New Hampshire security guard is in possession of the firearm, indicating that he was the actual buyer, and 2) whether there was any understanding among the parties to the purchase that it was going to be Bailey’s gun.

If the feds decided to prosecute based on the latter, I think it would be unique in the federal court system, since I’ve not found any case similar to it, but it seems like a plausible premise.  Think about a girlfriend who buys a firearm for her drug dealing felon boyfriend, but retains actual possession of it.  He can still come over and use it any time he wanted to, because he gave her the money, and it’s understood to be his firearm.  Would this not be a straw purchase?  I would imagine the feds would want to argue that it is.

Given the scrutiny he’s receiving from the feds, I sincerely hope that Steve Bailey will think twice about supporting this minefield of federal and state regulations that ordinary, law abiding gun owners are forced to navigate in order to exercise their constitutional right.  Many of these laws can easily, easily trap people with no criminal intent.   Maybe these folks want it to be risky and legally hazardous to purchase and own guns, but if that’s the case, they should plainly say so.  They should stop trying to sell the public on the idea that they want to control crime, and admit to desiring to make criminals out of otherwise law abiding people who participate in activities they find socially distasteful.

Eugene Volokh discusses the possibility, in a case coming out of Iowa here. Go have a read. I can’t believe the guy opted for a bench trial. I would imagine juries are a lot more sympathetic to a defendant in a situation like this, especially a police officer, and would be a lot more willing to overlook a duty to retreat.

I think some people are confused by Pennsylvania’s UFA in regards to how it defines firearms, and how you can carry an AR with an M4 upper loaded in a vehicle, but not a standard 16″ AR upper.   That’s understandable, because it’s confusing for people who are familiar with Pennsylvania’s gun laws.  Any time you look at PA law, you need to be sure which definition of firearm they are using.  The standard definition of firearm under Pennsylvania law reads like this:

Any weapon which is designed to or may readily be converted to expel any projectile by the action of an explosive or the frame or receiver of any such weapon.

There are only a few places this is used, mostly for penalty enhancement to existing crimes, and prohibiting NFA firearms if the possessor has no complied with the NFA.

Most of Pennsylvania’s firearms laws are contained in the Uniform Firearms Act.  In Pennsylvania, Firearms under the UFA are defined as:

Any pistol or revolver with a barrel length less than 15 inches, any shotgun with a barrel length less than 18 inches or any rifle with a barrel length less than 16 inches, or any pistol, revolver, rifle or shotgun with an overall length of less than 26 inches. The barrel length of a firearm shall be determined by measuring from the muzzle of the barrel to the face of the closed action, bolt or cylinder, whichever is applicable.

So basically, SBRs and SBSs, handguns, most AOWs, and machine pistols and most submachine guns, are considered firearms by the UFA, and are subject to it.  That means the extra state police form to transfer one, no private transfers, and you need a license to have one in a vehicle (unless you fall under the exceptions, like going to the range, place of business, etc).  If you have a license, you can carry a SBR, SBS, pistol, machine pistol, or submachine gun in a vehicle, loaded, because it’s a UFA firearm.

Long guns aren’t regulated for carry or transport by the state, except for not being allowed to have one loaded in a vehicle.  That bit is mentioned in the UFA, and is meant to protect game codes that forbade the practice:

§ 6106.1. Carrying loaded weapons other than firearms.

(a) General rule.–Except as provided in Title 34 (relating to game), no person shall carry a loaded pistol, revolver, shotgun or rifle, other than a firearm as defined in section 6102 (relating to definitions), in any vehicle. The provisions of this section shall not apply to persons excepted from the requirement of a license to carry firearms under section 6106(b)(1), (2), (5) or (6) (relating to firearms not to be carried without a license) nor shall the provisions of this section be construed to permit persons to carry firearms in a vehicle where such conduct is prohibited by section 6106.(b) Penalty.–A person who violates the provisions of this section commits a summary offense.

So basically, you have a loaded rifle in your car, loaded meaning this:

A firearm is loaded if the firing chamber, the nondetachable magazine or, in the case of a revolver, any of the chambers of the cylinder contain ammunition capable of being fired. In the case of a firearm which utilizes a detachable magazine, the term shall mean a magazine suitable for use in said firearm which magazine contains such ammunition and has been inserted in the firearm or is in the same container or, where the container has multiple compartments, the same compartment thereof as the firearm.

I keep an assault weapon bag which has magazine pouches on the outside, and put loaded magazines in the pouches.  I would argue that it’s a “separate compartment”, even though it would take 3 second to have a loaded rifle.  If I’m wrong, I get a ticket, so who cares, plus, I only really do the truck gun thing when I’m traveling.

You can see that Pennsylvania law is rather odd here.   If you had an M16, you can’t carry it loaded in a vehicle.  If you have an M4, and a license to carry, load it up and stick it in the back seat, or stuff it in a trench coat, you’re good to go, and ready to rock and roll.  SKS loaded in the back seat?  No no.  Loaded machine pistol under the seat?  No problem!   Weird huh?

Dave Hardy has a good summary.  I’m very pleased with the result, but I hope The Court will overturn McConnell in it’s entirety in the future.

A machinegun is actually a legal term, and not what we generally think of as machine gun.   The definition is actually found in Title 26, which is the tax code:

The term “machinegun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.

The big problem with ATFs regulations surrounding machineguns is that the law itself sucks, so it allows the ATF to be rather arbitrary and capricious in drawing up regulations when issues come up.  To me that is the heart of the problem.  Any law which is defined so badly that it allows a government bureaucracy to turn people into criminals with the stroke of a pen is an unconstitutional delegation of Congress’ law making powers to the executive branch.

Big problems in this law are:

1. The term “readily restored” is not clearly defined.
2. By the language “any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun,” you may not be able to have any machine gun part.  Even if you don’t have enough parts to make an actual machine gun.   I’ve heard of people getting in trouble for having M16 bolt carriers in their AR-15s, even though an M16 bolt carrier is insufficient to make a machinegun, because theres no auto sear in an AR-15 for the bolt carrier to trip.
3. And of course “The term shall also include the frame or receiver of any such weapon” is probably where ATF’s one a machinegun always a machinegun crap came from.

If I were to rewrite this law, assuming I didn’t have the power to get rid of it entirely, I would have written it as such:

The term “machinegun” means any weapon which shoots automatically more than one shot, without manual reloading, by a single actuation of the trigger. The term shall also include any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.

To me that language preserves the essential framework of the law, but closes the door to a lot of nonsense by the ATF.   Under this law, you could have a machine gun receiver, or a machine gun part, as long as you didn’t have all the parts you needed to make a machinegun.  No more readily converted nonsense.  Either you have a machinegun, have the parts, or you don’t.  Pretty simple, I think.

David Codrea asks whether we’re seeing a newly minted prohibited person.

Hospital? So he’s been involuntarily committed for having his picture taken holding a shotgun because the paranoid campus officials and authorities go bonkers even thinking of such things due to recent “threats”–none of which Meepegama apparently had anything to do with? And they think he’s nuts?

Unfortunately we don’t have details about whether this was a lawful commitment order, or SUNY merely told him to seek counseling if he wanted to stay in school. If it’s the latter, he would not be a prohibited person according to ATF regulations:

Committed to a mental institution. A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment to a mental institution involuntarily. The term includes commitment for mental defectiveness or mental illness. It also includes commitments for other reasons, such as for drug use. The term does not include a person in a mental institution for observation or a voluntary admission to a mental institution.

He would fall under the “observation” exception in the regulation, and wouldn’t be prohibited, and that’s assuming that he was ordered in for observation by someone with lawful authority under New York’s mental health laws. I’m not familiar with New York Law on the matter, but I suspect that a university official has no lawful authority in this regard.

UPDATE: I just realized this was originally posted in May.   Bloglines republished it, so I thought it was new.