Settle a Bet......

[tg]

Initialy someone had to make the choice to prosecute, the courts choice may have had something to do with the case specifics, I wonder if a white collar excriminal who had friends in high places would even be bothered if he had an openly displayed and used collection of originals or replica flintlocks?

 

[Jay Gardner]

Not all felony convictions result in prison. Some result in jail time (in Michigan if the actual sentence is less than 12-months) and some others result in no period of incarceration with probation only.

Again, this thread started with the question about FEDERAL law. And the answer has nothing to do with Michigan, Florida or any othere state. The Maryland Dist. Ct. decision IS CONTROLLING LAW THROUGHOUT THE US FEDERAL CT SYSTEM. Regardless of what that PO said, the law is REAL clear - anything that fires a projectile by an explosion is a firearm within the definition of the statute and will probably result in a conviction.

Here is what is going to happen convicted felon gets ML, does something and gets arrested, a charge of FIP (felon in posession is added) and he/she is going to spend $$$$ defending him/herself. Telling an arresting agent/officer that your PO said its OK is not going to effect the decision to arrest - the details will be sorted out later.

 

[tg]

At what point would the FIP sharge become a federal issue and be acted upon by the federal jurisdiction, typicaly the "crime" would have started at a state level and most states have their own laws about criminals and guns, would every state automaticaly charge the FIP on a state law then notify the federal authorities so they could charge at their level?

 

[Deadeye]

Fed law comes first unless the state law is even tougher. If you want to know what the Fed law is call the ATFD, if you want to know what the state law is call the Attorney General of that state, get it in writing. If I were betting with you that's what I would want before I paid off or collected.

 

[Jay Gardner]

If some one is charged with a federal crime (fed murder, RICO, tax...any federal charge - the FIP would probably be an after thought, not the primary charge). At the state level, they will ALWAYS charge FIP when they can. Example: Mr. Jones was convicted of posession of a controled substance in 1995. After he was released from prison/jail he went back to visit the person who turned him in, Mr. Brown. Mr. Jones shoots Mr. Brown - dead. Mr. Jones would be charged with 1st Deg. Murder and FIP.

I would think if a very unusual circumstance that the primary charge would be FIP. Maybe if Mr. Jones were stopped for speeding on the way to Mr. Brown's house and the police saw the gun - then they would charge FIP, and only FIP.

 

[tg]

That was what I was thinking, and at the local level the FIP charge being charged for a ML long gun might be at the descretion of the locals depending upon the whole story and might be dropped at the state level,my example of the white collar guy being served with a parking ticket and the police finding and original Brown Bess in his back seat is one where no charge at all might be filed at the local level, due to BATF reg interpretations, and it would never get to the federal level. not advocating right or wrong just looking at different perspectives. I knew one fellow who had a felony from the 60's as a kid when pot was a real big crime even on a small scale and he did a small amount of time and 15 years or so later asked the local Sheriff, DA and police chief if a ML would be a problem, he had become a solid citizen and they said to go ahead... I think as long as he did not mess up or wander into a local or state jurisdiction he was relitivly safe. My point being that your Federal court example is no doubt correct as to their interpretation but it might be difficult to get to that point unless one really screwed up. Your advise is sound as a great deal is at risk the best option would be for a felon to apply for Federal relief if it is still available.

 

[Jay Gardner]

tg: this was very interesting to look into. To be honest the thought of a convicted felon wanting to own a ML never crossed my mind. My initial thought was, and still is, that if it is a firearm, it is prohibited. If this is more than an academic question for anybody on this board, I strongly encourage you to seek advice, locally.

Regards,

Doublegun.

 

[tg]

I agree 100%, the risk is to great to assume anything considering the potential outcome.

 

[RJR]

The court dropped the ball, right down the toilet.

 

[ebby53]

Not sure what you mean.......This case from (1998), does a good job of understanding the definition of "REGULATED firearm". The case may have hurt Modern Muzzleloaders, Inc, but it defined the "firearm" definition. Wonder how this effects the (1981 and earlier cases) of Green v. US........Half Cock

 

[Jay Gardner]

It doesn't effect the Green case. The Court in Green said "Pistol which was a replica of 1859 Remington model black powder percussion pistol, which fell within statutory definition of "antique firearm," but which would expel projectile by explosion and was originally designed to be fired by use of a single hand, was both a "firearm" and a "handgun" under plain language of statute which prohibits receipt, possession or transportation in commerce of any firearm by any person who has been convicted of a felony, notwithstanding Bureau of Alcohol, Tobacco and Firearms' interpretation that such statute does not apply to antique firearms, which do not utilize fixed ammunition." The court says we don't give a manure what the BATF defines as a firearm - if it expels a projectile by an explosion it is a firearm. You are getting fixated on the BATF definition.

 

[ebby53]

Green was a 1981 Case, this one was a 1998 case, and was not a BATF interpretation but a U.S. District Court (District of Coluimbia) interpretation. Need to read it all?

 

[ebby53]

Here's an interesting case involving regulated fireams, and ignition sources. Go to the link below and scroll down to: Modern Muzzleloading,Inc(1998) v. Magaw

http://www.titleii.com/Bardwell/cases_short.html

 

[Jay Gardner]

I read them both - a couple of times - and I will admitt that it is not easy to reconcile both decisions. The Modern case is an interpretation case and it is a civil case whereas Green is a criminal case dealing directly with the issue of whether or not a ML is a "firearm" for purposes of charging FIP. Green says it is - explicitly, whereas it is only implied in Modern. Modern did not overrule Green, directly or indirectly - Green is still good law with respect to the charge of FIP - the case has not been over ruled, criticized or otherwise distinguished.

Here is another case you might want to read: Markham v. U.S. Dept. of Treasury, Bureau of Alcohol, Tobacco and Firearms, 594 F.Supp. 9, 12 (E.D.Mich. Jun 09, 1983)

 

[ebby53]

Thanks........ I will out check the other case, if I can find it. It's not in the link that I sent out. There is not much current case law on the issue. I still think that the question is an interesting one.

To be continued.......

 

[Jay Gardner]

Try to find the case on Findlaw.com. The case actually deals with a felon with an executive pardon still not being able to own a firearm.

Talked to a buddy who is a prosecutor here in MI. Ask him his thoughts - he did real well until he got to the part about "antique" firearms. He said that's where it gets complicated - looks like we are in good company.

Regards

 

[ebby53]

I have searched, and can not find that case ( Markham v. Us......) Does it have to do with the definitions? I have no problem with FIP, however if it involved an Antique and the definition that I've referenced, well, I guess I do. Is there not much case law of late (after 1981), do to the fact that since before and after not many cases were made? What did your SA, Dep US Attny, have to say. I'm still back to the PO's statement that "you can have a ML now", that has me baffled. I mean this guy could have done my friend in by his statement, unless he was planning it anyway. I do not think he would have said it in front of a witness (Me) if that was the case. Maybe State Law is different, causing the complications.

 

[Jay Gardner]

The Markham case deals with the ability of an ex-felon, pardoned by Executive Pardon, still not being able to own a firearm (not a ML). It is the only case that has cited the Green decision.

There have been cases citing Modern, but not on the substantative point of what constitutes a firearm for purposes of the statute. The case is cited for procedural points of law, only. remember Modern really narrowed the definition of antique firearm by excluding MLs ignited by primer instead of cap. (Or on the case of Modern capable of using cap or primer).

Send me a pm if you have further questions. There have been too many twists and turns in this thread for me to keep the facts clear.

As for your buddy, I would suggest that he talk to the local DA, State's Attorney, or Prosecutor (whatever they are called in Florida). Just ask him/her if he can own one or not - maybe they would even give him a letter if it is OK. I don't remember if your buddy was convicted in federal court or state court, but if it was state court then he really needs to understand the state law regarding FIP and forget about federal cases.

 

[ebby53]

Yes, I'll do that. First, I will do a little leg work, and see what comes up. Thanks