What is the law Re: pre 1899?

Discussion in 'Curio & Relics Forum' started by tmaca, Oct 11, 2010.

  1. tmaca

    tmaca New Member

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    Does anyone know the law as regards pre-1899 guns?

    Do they have to be before 1899 or are they 1899 and earlier?

    Is the relevant year the actual year of manufacture or the year the gun was first patented or the year it was first made? An Iver Johnson .38 Short Safety Automatic revolver, for instance, came in 3 versions, the 1st all made pre-1899, the 2nd made from 1898 to 1902, but all made for black powder, and the 3rd all made later, with possibly some made for black powder and later ones for smokeless (I'm not at all sure of that). Which of them are legally pre-1899 guns?

    I'm told that pre-1899 guns are not firearms under the federal firearms control laws, and that they are not governed by ANY federal laws. If that is in fact the case, what does it mean in practical terms? Can they be sold, even by a gun store, without paperwork or registration of any kind? Can they be mailed both by someone and also to someone who has no FFL? How does the federal restricted person law (which says no convicted felon can possess a firearm) apply, or does it? How do state laws apply? Do any states define firearms as whatever the federal law says is a firearm (state laws and regulations often do that, referring to the definition of something that is already in federal law, instead of bothering to write their own definition). In any states which reference the federal definition, would that exempt the guns from state concealed carry permits and laws?:confused:

    I have to admit that a lot of this doesn't apply to me personally since I have a concealed carry permit that's good in about 40 states, but these things are all interesting questions and I'd sure like to find the answers.

    I'm going to post this in the constitutional forum also.
    Last edited: Oct 11, 2010
  2. Boris

    Boris Former Guest

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    I have two pre 1899 rifles. I bought them and had them shipped right to me and I have no FFL.

    They can be sold, transfered, and given with no restrictions other than maybe some restrictive local laws.

    The firearm has to be made 1899 or earlier. Patent date has nothing to do with it......
  3. Alpo

    Alpo Well-Known Member

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    1898 or earlier. That's why they are PRE-1899
  4. Jim K

    Jim K New Member

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    The FFA actually says "manufactured in or before 1898". Watch out, though, if NFA firearms are involved as the NFA definition differs.

    Jim
  5. RJay

    RJay Well-Known Member

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    You also have to be carefull in refering to antiques and concealed carry. If it is a firearm, antique or not, it is cosidered a firearm in referenced to concealed carry. And no, a felon is not allowed even a black powder or antique firearm.
  6. Jim K

    Jim K New Member

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    AFAIK, a felon can own an antique firearm, since it is not a firearm under federal law. But the laws on concealed carry, ADW, armed robbery, etc., don't make any distinction between an antique gun and any other gun. That is probably as it should be; I am looking at a Model 1842 caplock pistol that is certainly as much a deadly weapon as a 9mm Glock, at least for one shot. (And the .54 caliber ball would probably do as much damage as a couple of 9mm bullets.)

    Jim
  7. RJay

    RJay Well-Known Member

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    Jim, in Arizona, if a antique firearm is capable of loading and firing a modern cartridge, it don't make no never mind how old it is, if a felon is in possession of such a firearm he's going down. And in many states I've been in, this also true of any firearm, black powder or not. In fact the question has come up, can a felon can go hunting during the primitive hunting season with a muzzleloader? the answer is no, right or wrong. Now there may be some states that are not as restrictive on the muzzleloading part, but on the modern cartridge bit none of the states have a sense of humor.
  8. Boris

    Boris Former Guest

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    Interesting. I am actualy learning something...

    So what happens when big bro knocks and demands my freedom? Will my not a firearm by federal law be considered freedom aswell? Or will they let me keep them........
  9. b.goforth

    b.goforth New Member

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    i would like to add a little something here that may or may not help. any revolver, pistol, rifle or shotgun made on or before december 31,1898 is considered an antique by federal law and any of the above made on or after january 1,1899 is considered a modern firearms. the type of cartridge it fires (black bowder or smokeless) is not considered, as is the date on any patent protection granted by the federal government. a curio and relic is any firearms made 50 years before the current year, or any firearm on the federal government's current C&R list. those made in 1959 for this year and this will change every year. the actual date of manufacture of the firearm in question is what matters not when the model was introduced.

    all the federal laws about firearms can be dated from about 1932 when the first federal laws were passed and 1968 with more restrictions were imposed by the federal government. it must be noted that states have alway reserved the rights to impose what ever restriction thay want.
    bill
    Last edited: Oct 13, 2010
  10. Jim K

    Jim K New Member

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    Also considered an antique, regardless of the date made, is any replica of an antique provided it doesn't use fixed ammunition or doesn't use ammuntion "readily available" in commercial channels.

    But, as I said above, the NFA definition is close but different. It says, "any firearm not designed or redesigned for using rimfire or conventional centerfire ... and manufactured in or before 1898...also any firearm manufactured in or before 1898 for which ammunition is no longer manufactured...." So a Colt Model 1895 machinegun firing the .30-40 Krag is still a machinegun, even if made in 1896. (A hand operated Gatling is not since it does not function "automatically".)

    The above are summations; if in doubt about any specific item check the law and applicable regulations or contact BATFE headquarters by mail. (Don't ask an agent; any answer you get is not authoritative and may be wrong.)

    Jim
    Last edited: Oct 13, 2010
  11. tmaca

    tmaca New Member

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    As far as ATF is concerned, they can be useless. A while back, on behalf of a client, one of the NRA's top 2 attorneys wrote to the ATF's General Counsel, asking about the status of an M14, made from all original military components, except the receiver itself, which was semi-auto only, but which someone had modified in perhaps an attempt to convert it to select fire. An unsuccessful, or at least incomplete, attempt, by the way, if that's what was being tried. He sent them both a complete description of the modifications and clear and accurate photographs, and the answer he got back was that they couldn't say one way or another (regarding the gun's legality) and if the client wanted an official determination he'd have to ship the thing to the ATF lab.

    As for the antique thing, I see a problem with the still manufactured ammo thing. Nobody manufactures ammo for my 1898 Iver Johnson .38 Safety Automatic Revolver. The thing is a black powder gun, and, as far as I know, nobody manufactures a black powder .38 short. In fact, in some states now, such as Utah, the requirements for even having black powder in any commercial quantities (like having it on hand for retail sale, or manufacturing black powder loaded cartridges) have become economically prohibitive. Things like having a blow-out-top safe and a blow-out roof are just the start of the list of requirements, so literally nobody sells or works commercially in any way with black powder in states, like Utah, with such expensive requirements.

    So if nobody manufactures the cartridges, but a modern .38 short would physically fit, but is not in fact the ammunition for this gun because it could blow the thing up if fired, what's the gun's status?

    About concealed carry, ADW, and such, I believe it depends on the individual state's definition. If state laws reference the federal law's definition of a modern firearm as what a particular law, such as the state's concealed carry law, covers, then an antique, as defined in the NFA, would be exempt. Many state laws do reference federal law definitions on their own laws on similar topics, rather than having their own definitions. However, I do not know (does anyone?) if that is the case with firearms in any particular state. I found out that Utah, for instance, rewrote its definition so that now a weapon is anything that can project a projectile. Unfortunately, it seems they didn't bother to define projectile, so, technically speaking, in Utah you might better not ever put your hands in your pockets. After all, your thumb and forefinger can shoot a rubber band, which would seem to make a rubber band a projectile, making your hand a concealed weapon.

    Legislative stupidity and laziness aside, some things, like concealed carry, are almost always strictly the province of state, rather than federal, law (Yeah, I know about the relatively recent federal law allowing active and honorably retired peace officers to carry anywhere, but that's an exception to the rule and has some confusing provisions in it which have never been actually tested in court.) So it seems the question is how does a state law define a firearm, deadly weapon, etc. If the state references the NFA's definition of a modern firearm, antiques are exempt. If it uses some other definition, it depends on what that definition covers.

    So does anyone know if any state's laws do use the NFA's modern firearm definition?

    As for felons, it seems to me that a felon would be legal having an antique as far as the NFA is concerned, but some states (I don't know which ones) do have their own "restricted person" laws which might prohibit even antiques. Confusing.
  12. Jim K

    Jim K New Member

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    The original discussion was on the definitions of federal law. State and local law can differ radically.

    But I don't know of any state that makes a distinction in its criminal code re ADW, armed robbery, etc. between an antique gun and a modern one. Most even consider a dummy or toy gun as a weapon in cases of armed robbery since the victim can be just as terrified by a water pistol as by a real gun. IMHO it would be plain silly to say that holding up a bank with, say, an 1851 Navy, would be OK and not armed robbery. (A man in FL was convicted of armed robbery when he held up a store and threatened the clerk with a baby alligator!)

    As to a gun that should be fired only with black powder cartridges would be an antique for that reason that, too, is silly. I have fired hundreds of those old guns with modern ammunition (none blew up). The intent of the law is clearly that only guns that use cartridges not now available and which cannot accept regularly available cartridges are considered antiques.

    Jim
  13. tmaca

    tmaca New Member

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    First off, a lot of laws are ridiculous, sometimes because they cover things that make no sense, and sometimes because the way they're written they do not cover things they were intended for. All that aside, ammunition for a black powder .38 short is NOT readily available. Just because one can fire (and for some period or another of time get away with it) .357 Mag in a S&W Model 10 does not mean that .357 Mag is ammunition "for that gun". Nor does the fact that a .38 short manufactured to use black powder loaded cartridges can chamber and fire a modern, say, .38 S&W or .38 Colt Short make either of the latter 2 into ammunition for that gun. Whether the terminology in the law is "readily available" or currently being manufactured", there is no ammunition around now for that gun. One can use many things for purposes for which they are not intended. As another analogy, a baseball bat used to beat someone would result in a charge of assault with a dangerous, or even deadly, weapon, but that does not make baseball bats themselves deadly weapons, nor could every little leaguer in the country be charged with underage possession of a dangerous weapon or something similar. There, sir, is the rub. Just because something can be misused does not change what that thing itself is or is not.

    While it would make little if any difference in the real world except, perhaps, in the case of possession by a convicted felon or perhaps in some circumstances for either open or concealed carry, and then only in a state which had no laws and definitions of its own in those areas (if there even is any such state), I have to maintain that any gun manufactured in 1988 or earlier, and designed for black powder charged cartridges, meets the requirements for an antique. Interestingly, that particular "exemption" would not include muzzle loaders, no matter how old, because the proper ammunition for them is still available. And if, as has already happened in some states, black powder becomes unavailable, the low pressure smokeless that is now around, and was apparently designed to replace actual black powder, is appropriate ammunition for a black powder muzzle loader. But I have yet to find anyone manufacturing any kind of cartridge, much less .38 short, with the stuff. If you know of anyone, I'd sure like to know about it. Then I could actually spend some range time with my Iver Johnson.
  14. Alpo

    Alpo Well-Known Member

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    There is no such thing as a "38 Short". There is/was a 38 Short Colt, and there is a 38 Smith and Wesson. Your gun, being an Iver Johnson, is chambered in 38 S&W. 38 S&W is still being loaded by several different ammo companies, and is "readily available in commercial trade". It does not matter that your gun was chambered for a cartridge propelled by black powder. The cartridge - 38 Smith and Wesson - is still being loaded, and it does not matter if it is propelled by black powder, smokeless powder or plastic explosive. It is still being loaded.

    If your gun was made prior to 1899, it is an antique, whether they are still making ammo for it or not. If your gun was made after 1898, it is a modern gun. Accept it. You don't have to like the law. You don't have to agree with the law. If you don't mind going to jail, you don't even have to OBEY the law. But it is still the law.

    There are several companies loading black powder ammo. These folks don't list 38 S&W, but they are a custom reloader, so they can probably do it. Wouldn't hurt to ask.
    http://gadcustomcartridges.com/
  15. Jim K

    Jim K New Member

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    Sorry, tmaca, your "interpretation" of the law simply doesn't make sense. If you choose to break the law and believe your view will prevail in court, I can only wish you luck. There is a term for those non-lawyers who argue interpretation of the law with federal judges - they call them "jailhouse lawyers."

    I respect those who feel those older guns should not be fired with modern ammunition, and understand the concern but, as I said, I have fired hundreds of them with modern ammo with no problems, though a few have chamber walls so thin I would not fire them with anything.

    Reloads can be made up with black powder or with a black powder substitute if necessary, so the idea that some law is keeping you from firing an old gun simply is not so.

    Jim

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