Firearms And Explosives

Firearms And Explosives

The word "firearm" is a term of art. The term "firearm" is defined in 18 U.S.C. § 921(a)(3) as:

(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive;

(B) the frame or receiver of any such weapon;

(D) any destructive device. Such term does not include an antique firearm.

This definition applies to prosecutions under 18 U.S.C. § 922, affecting mostly prohibited persons, while another, set forth below, applies to cases prosecuted under 26 U.S.C. § 5861 (also known as the National Firearms Act of 1934), affecting machine guns, sawed-off shotguns/rifles, and silencers: "Firearm" is defined in 26 U.S.C. § 5845(a) as: (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun; (7) any silencer (as defined in section 921 of title 18, United States Code); and (8) a destructive device .... Another category of "firearm" is the "assault weapon," defined under 18 U.S.C. § 921(A)(30).

The term "semiautomatic assault weapon" means (A) any of the firearms, or copies or duplicates of the firearms in any caliber, known as- (i) Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs (all models); (ii) Action Arms Israeli Military Industries UZI and Galil; (iii) Beretta Ar70 (SC-70); (iv) Colt AR-15; (v) Fabrique National FN/FAL, FN/LAR, and FNC; (vi) SWD M-10, M-11, M-11/9, and M-12; (vii) Steyr AUG; (viii) INTRATEC TEC-9, TEC-DC9 and TEC-22; and (ix) revolving cylinder shotguns, such as (or similar to) the Street Sweeper and Striker 12; (B) a semiautomatic rifle that has an ability to accept a detachable magazine and has at least 2 of- (i) a folding or telescoping stock; (ii) a pistol grip that protrudes conspicuously beneath the action of the weapon; (iii) a bayonet mount; (iv) a flash suppressor or threaded barrel designed to accommodate a flash suppressor; and (v) a grenade launcher; (C) a semiautomatic pistol that has an ability to accept a detachable magazine and has at least 2 of- (i) an ammunition magazine that attaches to the pistol outside of the pistol grip; (ii) a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer; (iii) a shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to hold the firearm with the nontrigger hand without being burned; (iv) a manufactured weight of 50 ounces or more when the pistol is unloaded; and (v) a semiautomatic version of an automatic firearm; and (D) a semiautomatic shotgun that has at least 2 of-(i) a folding or telescoping stock; (ii) a pistol grip that protrudes conspicuously beneath the action of the weapon; (iii) a fixed magazine capacity in excess of 5 rounds; and (iv) an ability to accept a detachable magazine.

Crucial to any assault weapon prosecution is the date of manufacture. It is not unlawful to possess or transfer assault weapons manufactured prior to the date of enactment of the Assault Weapons Ban, September 13, 1994. 18 U.S.C. § 922(v)(2) (setting forth grandfather clause); Historical and Statutory Notes, 18 U.S.C. § 922 . An assault weapon receiver made before Sept. 13, 1994 may be grandfathered under § 922(v)(2), even if the gun was assembled post-bane. Alternatively, it may be questioned whether a receiver by itself can ever be an assault weapon or a 5861 type weapon (machine gun), since the definitions of "firearm" in 26 U.S.C. § 5845, and "assault weapon" in 18 U.S.C. § 921(a)(30), do not include the term "receiver." Each gun (at least under the 922 subsections) has a single piece which is actually the legally operable "firearm." 18 U.S.C. § 921(a)(3)(B). This is referred to as the "frame" or "receiver." A frame or receiver is the portion of the weapon in which is contained the firing mechanism, and to which is generally attached the grip frame, the trigger housing, the stock, the barrel, etc ... If you are charged with possessing a weapon built on a receiver that is proven to have been manufactured prior to September 13, 1994, but which was not originally sold as an entire gun, it has been suggested that this may be a defense, though the ATF disagrees, that this is not prosecutable because the entire weapon is grandfathered by the receiver's date of manufacture.

A collection of parts which appears to be 90% of a weapon is not a firearm if it lacks a receiver. The subtle nature of the receiver may change its legal status. For example: A receiver may have been manufactured before 1898, rendering the gun, even if composed of newer parts, an antique.

Prohibited Persons Categories, 18 U.S.C. § 922 (g) This code section imposes a maximum ten-year sentence for possession of a firearm or ammunition (assuming that the person does not qualify for a fifteen year sentence under 18 U.S.C. § 924(e). It prohibits possession of guns by: 1) felons; 2) addicts/users of controlled substances; 3) "adjudicated mental defectives"; 4) fugitives; 5) illegal aliens; 6) dishonorably discharged persons; 7) persons who have renounced U.S. citizenship; 8) persons subject to domestic violence restraining orders; and 9) persons convicted of misdemeanor domestic violence offenses. The most common of these, by far, is 922(g)(1). A defendant may be charged with being more than one type of prohibited person in possession of a firearm. This creates issues relating to multiplicity and severance, as it has been held that one cannot be punished multiple times for being in multiple categories while possessing a weapon, or for possessing multiple weapons, during a given incident.