"I lost all my guns in a boating accident"

[Will Munny]

In accordance with Supreme Court precedent since Wickard v. Filburn, basically everything affects interstate commerce, even if an object is never transported across state lines. This is why the various state laws claiming to legalize locally manufactured but unregistered NFA firearms are null and void.

They are not null and void, the court is simply wrong, as it often has been. All that really matters is who is in office, get the right person in office and the court's rulling is meaningless.

 

[citizenconn]

They allow it on public waters around here but we have to buy a permit to do it.

Having to have a permit is just nuts in my opinion. But I am not surprised. Seems we live in times where those in power, no matter how low level, either want to make money off of or regulate every activity of our lives.

 

[General Geoff]

They are not null and void, the court is simply wrong, as it often has been. All that really matters is who is in office, get the right person in office and the court's rulling is meaningless.

Right or wrong's got nothing to do with it. I'm merely stating that someone could be charged with and convicted of the cited crime given current case law.

Judges don't rule in criminal trials based on random internet opinions.

 

[General Geoff]

Possession of a “defaced” firearm is a Class A misdemeanor under Kentucky law. The good news is that class A misdemeanor offenses in Kentucky are criminal charges that carry penalties of not more than twelve months in jail. The 4473 asks about conviction of a crime for which the penalty could have been more that one year, so conviction under state law wouldn’t make you a prohibited person.

That is in addition to the previously cited federal law. One could be charged with and convicted of both if recovering old guns from the water in Kentucky

 

[Frank Ettin]

Citing 27 CFR § 478.34 - Removed, obliterated, or altered serial number.
...
Nothing in there about who did the obliterating. Mere receipt and/or possession is enough to be charged with the crime.

Incorrect.

Read the statute you cited:...

No, you're incorrect.

You really have to stop pretending that you know anything about law.

Just so everyone clearly understands, it is a serious violation of federal law for anyone to possess a gun on which the manufacturer's serial number has been altered or defaced. It doesn't matter how the serial number became altered or defaced.

• Guns could legally be manufactured prior to 1968 without a serial number.
  
  
• In the case of any gun on which the manufacturer put a serial number, whenever it was made (pre- or post- 1968) possession is illegal if that serial number was obliterated or defaced.
  
  
• See 18 USC 922(k), emphasis added:

  (k) It shall be unlawful for any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered or to possess or receive any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.

  
  
• As federal courts have held, affirming convictions for violations of 18 USC 922(k):
  
  
  • U.S. v. Horey, 36 F.3d 1106 (C.A.10 (Okl.), 1993):
    

    ...We turn to defendant's argument that his conviction for violating 18 U.S.C. 922(k) was also based on insufficient evidence. Defendant argues the government failed to sufficiently show that the revolver's serial number was removed, obliterated, or altered. He asserts the statute does not reach serial numbers that are still readable.
    
    Police officers testified that the serial number was obliterated. In addition, an expert in firearms and tool mark examination testified the revolver's serial number was partially obscured or obliterated. The examiner also noted that it was possible one or two additional serial numbers were completely obliterated. Based on the clear language of 922(k), we reject defendant's argument that the statute does not reach the firearm recovered by the police in this case. The evidence is sufficient to sustain the conviction, and we AFFIRM the jury's verdict....

    
    
  • See also U.S. v. Adams, 305 F.3d 30 (Fed. 1st Cir., 2002)(emphasis added):
    

    ...As for the evidence, that was clearly sufficient once it is understood that any alteration that works against legibility is enough; ...The pistol was presented to the jury. The case agent testified at trial that he could read the six digits of the serial number but with difficulty. At oral argument, Adams's counsel asked that this court examine the original pistol, and we now report the results.
    ...
    Of course, judgment as to the degree of impairment was for the jury. But a reasonable jury could easily conclude that this pistol had been altered so as to make it appreciably more difficult to read the serial number. Indeed, a reasonable jury could hardly reach any other conclusion...

  
  
• Under 18 USC 924, the penalty for possession of a gun on which the manufacturer's serial number has been removed, obliterated or altered is up to five years in federal prison and/or a fine. Also, since that is a felony, a conviction would mean a lifetime loss of gun rights.

And by the way, 27 CFR 478.34 is not a statute. It's a regulation promulgated by ATF. The statute is the one I cited, 18 USC 922(k).

 

[MachIVshooter]

No, you're incorrect.

You really have to stop pretending that you know anything about law.

Oh yeah?

........to possess

or receive any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.

Care to explain how "and" doesn't make interstate commerce a necessary component of the violation?

It doesn't say "crossed state lines". It says "Interstate or foreign commerce".

How do you propose that a prosecutor would prove beyond a reasonable doubt that the firearm in question had been shipped or transported in interstate commerce?

The language in that one is pretty plain. Intrastate is not covered, so it has to be proved that interstate commerce occurred, which doesn't include a case such as the original owner, who purchased the firearm in the same state that it was manuafactured, distributed and originally sold, who then visited or moved to another state in which the firearm was lost or discarded. This is ignoring pre-68 stuff or home builds that may never have been serialized or otherwise marked.

State laws, as I said before, are another matter.

 

[Frank Ettin]

Oh yeah?

Care to explain how "and" doesn't make interstate commerce a necessary component of the violation? ....

You'd what that means if you knew how to do legal research and bothered to look at the case law.

The courts have viewed the interstate commerce criterion broadly. I haven't seen an appeal of a conviction for possession of a gun with a defaced serial number appealed based on the interstate commerce language (but convictions have been appealed on other grounds and upheld). However similar language is found in 18 USC 922(g) makes it unlawful for certain classes of persons (e. g., convicted felons, unlawful drug users, etc.):

...to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

And here's what the courts have said about that:

1. In U.S. v. Chesney, 86 F.3d 564 (C.A.6 (Tenn.), 1996), the Sixth Circuit affirmed, against a Commerce Clause challenge Chesney's conviction for being a felon in possession of a firearm.
   
   In rejecting Chesney's assertion that the 18 USC 922(g) is unconstitutional, the court of appeal noted, at 568 -- 569:

   ...another panel of this court has held § 922(g)(1) to be constitutional. In United States v. Turner, 77 F.3d 887 (6th Cir.1996), a unanimous panel held that " § 922(g)(1) represents a valid exercise of legislative power under the Commerce Clause." Id. at 889. As this court wrote in Turner, "Every court of appeals that has been faced with this question since Lopez has held that the jurisdictional element of § 922(g) provides the requisite nexus with interstate commerce ....

   
   In rejecting Chesney's assertion that the statute can not be applied in his case, the court of appeal noted, at 570 -- 571:

   ...Chesney, unlike the defendant in Turner, also challenges § 922(g)(1) as applied to him by arguing that his conviction is unconstitutional because the government failed to prove any "substantial nexus between the crime charged and interstate commerce." Chesney stipulated that the gun had moved in interstate commerce, and such a stipulation is sufficient evidence to support Chesney's conviction pursuant to § 922(g)(1). See United States v. Lee, 72 F.3d 55, 58 (7th Cir.1995) (stipulation that gun was in or affecting commerce sufficient evidence to support a conviction under § 922(g)(1)). ...
   
   The Supreme Court has held that proof that a firearm moved in interstate commerce at any time is sufficient to meet the government's burden of proving the "in commerce or affecting commerce" element of § 1202(a), the predecessor to § 922(g)(1). Scarborough v. United States, 431 U.S. 563, 566-67, 97 S.Ct. 1963, 1964-65, 52 L.Ed.2d 582 (1977). Although Scarborough was decided as a matter of statutory construction, the Court noted that Congress knew how to assert " 'its full Commerce Clause power so as to cover all activity substantially affecting interstate commerce,' " and that Congress intended to exercise the full extent of its Commerce Clause power when enacting § 1202(a). Id. at 571-72, 97 S.Ct. at 1967-68 ...
   
   All of the courts of appeals to consider the issue since Lopez have concluded that § 922(g)(1), as construed to require only the minimum nexus to commerce approved in Scarborough, is constitutional. See, e.g., McAllister, 77 F.3d at 390; Sorrentino, 72 F.3d at 296; Shelton, 66 F.3d at 992; Hanna, 55 F.3d at 1462 n. 2.,...

   
   
2. In U.S. v. Singletary, 268 F.3d 196 (3rd Cir., 2001), the Third Circuit affirmed a conviction for being a felon in possession against an attack on the constitutionality of 922(g), at 197:

   ...Singletary contends that the felon-in-possession statute is unconstitutional because the conduct it proscribes -- the intrastate possession of a firearm -- does not have a substantial effect upon interstate commerce, and thus does not constitute a valid exercise of Congress' authority under the Commerce Clause. Specifically,...

   
   In rejected Singletary's assertion, the court of appeal noted, at 200:

   ...the Court in Scarborough v. United States had the opportunity to address squarely "whether proof that the possessed firearm previously traveled in interstate commerce is sufficient to satisfy the statutorily required nexus between the possession of a firearm by a convicted felon and commerce." 431 U.S. 563, 564 (1977). The Court accepted the Government's contention that it only need prove that "the firearm possessed by the convicted felon traveled at some time in interstate commerce." Id. at 568. Thus, the Scarborough Court established the proposition that the transport of a weapon in interstate commerce, however remote in the distant past, gives its present intrastate possession a sufficient nexus to interstate commerce to fall within the ambit of the statute. Because S 1202(a) is the predecessor to the current felon-in-possession statute, this statutory construction applies equally to S 922(g)(1)....

   
   
3. In United States v. Hoyle, 697 F.3d 1158 (10th Cir., 2012), the Tenth Circuit affirmed Hoyle's conviction for being a felon in possession. In doing so the court of appeal noted, at 1165:

   ... “Section 922(g) requires that the firearm be possessed ‘in or affecting commerce.’” United States v. Williams, 403 F.3d 1188, 1195 (10th Cir.2005) (quoting 18 U.S.C. § 922(g)). The Supreme Court has affirmed the Fourth Circuit's holding that: “[T]he interstate commerce nexus requirement of the possession offense was satisfied by proof that the firearm [defendant] possessed had previously traveled in interstate commerce.” Scarborough v. United States, 431 U.S. 563, 566, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977)...

So once again, you've posted incorrect legal information; and if anyone were unwise enough to pay attention to you, they could get themselves into serious legal difficulty.

 

[MachIVshooter]

You'd what that means if you knew how to do legal research and bothered to look at the case law.

The courts have viewed the interstate commerce criterion broadly. I haven't seen an appeal of a conviction for possession of a gun with a defaced serial number appealed based on the interstate commerce language

So I'm wrong and you're right because you've researched case law and, though you've found none supporting your position, I must be incorrect because I can't find case law supporting mine? Argumentum ad ignorantium.

At any rate, all of your citations support my statement that proving interstate commerce had occurred is requisite in federal prosecution of these crimes:

​

And here's what the courts have said about that:

1. In U.S. v. Chesney, 86 F.3d 564 (C.A.6 (Tenn.), 1996), the Sixth Circuit affirmed, against a Commerce Clause challenge Chesney's conviction for being a felon in possession of a firearm.
   
   
   In rejecting Chesney's assertion that the 18 USC 922(g) is unconstitutional, the court of appeal noted, at 568 -- 569:
   
   
   ........provides the requisite nexus with interstate commerce ....​
   
   In rejecting Chesney's assertion that the statute can not be applied in his case, the court of appeal noted, at 570 -- 571:
   
   
   .......Chesney stipulated that the gun had moved in interstate commerce, and such a stipulation is sufficient evidence to support Chesney's conviction pursuant to § 922(g)(1). See United States v. Lee, 72 F.3d 55, 58 (7th Cir.1995) (stipulation that gun was in or affecting commerce sufficient evidence to support a conviction under § 922(g)(1)). ...
   

   ​
   
   
2. In U.S. v. Singletary, 268 F.3d 196 (3rd Cir., 2001), the Third Circuit affirmed a conviction for being a felon in possession against an attack on the constitutionality of 922(g), at

.......provides the requisite nexus with interstate commerce


In rejected Singletary's assertion, the court of appeal noted, at 200:

1. 
   ......need prove that "the firearm possessed by the convicted felon traveled at some time in interstate commerce."​
   
   
2. In United States v. Hoyle, 697 F.3d 1158 (10th Cir., 2012), the Tenth Circuit affirmed Hoyle's conviction for being a felon in possession. In doing so the court of appeal noted, at
   
   ........satisfied by proof that the firearm [defendant] possessed had previously traveled in interstate commerce.”

Anyone who's been around here long knows you'd accuse me of being wrong if I stated that water is wet because you have a personal vendetta with me for some reason, but maybe give it a rest at some point.

 

[Elkins45]

If you find a S&W revolver originally sold in any state except MA then interstate commerce has occurred. Since we’re discussing a gun with an obliterated serial number the courts would probably find that the steel came from PA or the wood grips came from AL. Proving interstate commerce is the least of the prosecution’s worries.

 

[MachIVshooter]

If you find a S&W revolver originally sold in any state except MA then interstate commerce has occurred. Since we’re discussing a gun with an obliterated serial number the courts would probably find that the steel came from PA or the wood grips came from AL. Proving interstate commerce is the least of the prosecution’s worries.

No sir.

As I already covered but specific to your example, if S&W manufactured it in MA, sent it to a distributor in MA, who sent it to a dealer in MA, where it was bought by a resident of MA, who then travelled or moved to another state where he discarded or lost it, no interstate commerce occurred. It would have to have transferred to an FFL or private party in/of another state at some point. Proving that happened without a serial would be quite difficult.

Insofar as this thread is concerned, if the corrosion has eaten the S/N, doubtful any other markings remain, so now provenance is even more difficult, because you can't even establish who made it. Lots of clones exist, as well as skillfully machined home made replicas that may never have had identifying marks (not required under federal law)

Raw materials and sourced unregulated parts also aren't part of the equation. Just the manufactured frame/receiver that is legally the firearm. And if you really think it's possible to trace the source of the steel used in manufacturing a part to a foundry/mill by it's composition, you've been watching too much CSI.

 

[Frank Ettin]

... if S&W manufactured it in MA, sent it to a distributor in MA, who sent it to a dealer in MA, where it was bought by a resident of MA, who then travelled or moved to another state where he discarded or lost it, no interstate commerce occurred. It would have to have transferred to an FFL or private party in/of another state at some point. Proving that happened without a serial would be quite difficult....

Wrong again. See, for example:

1. U.S. v. Ballinger, 395 F.3d 1218 (11th Cir. 2005), at 1242:
   

   ...in United States v. Reynolds,215 F.3d 1210 (11th Cir. 2000), we again reiterated that § 922(g)'s jurisdictional requirement means that the government must prove only"that the firearm possessed traveled in interstate commerce," — not that the possession itself have occurred in commerce. Id. at 1215. Accordingly, Reynolds found the fact that the gun 'was manufactured in Connecticut and then traveled across state lines to Florida, where Reynolds possessed it' was 'sufficient to show the required nexus to interstate commerce.' Id.....

   
   
2. U.S. v. Carroll, 105 F.3d 740 (1st Cir. 1997), at 742:
   

   ... Transmission of photographs by means of the Internet is tantamount to moving photographs across state lines and thus constitutes transportation in interstate commerce. See United States v. Thomas, 74 F.3d 701, 706-07 (6th Cir.), cert. denied, 117 S.Ct. 74 (1996)...

   
   
3. U.S. v. Griley, 814 F.2d 967 (4th Cir. 1987), at 973:
   

   ...A gun is carried in interstate commerce whenever it is moved or carried across state lines from one state into another state...

Once again, you fail to get things correct because you don't do the research.

 

[Elkins45]

No sir.

As I already covered but specific to your example, if S&W manufactured it in MA, sent it to a distributor in MA, who sent it to a dealer in MA, where it was bought by a resident of MA, who then travelled or moved to another state where he discarded or lost it, no interstate commerce occurred. It would have to have transferred to an FFL or private party in/of another state at some point. Proving that happened without a serial would be quite difficult.

Insofar as this thread is concerned, if the corrosion has eaten the S/N, doubtful any other markings remain, so now provenance is even more difficult, because you can't even establish who made it. Lots of clones exist, as well as skillfully machined home made replicas that may never have had identifying marks (not required under federal law)

Raw materials and sourced unregulated parts also aren't part of the equation. Just the manufactured frame/receiver that is legally the firearm. And if you really think it's possible to trace the source of the steel used in manufacturing a part to a foundry/mill by it's composition, you've been watching too much CSI.

IANAL but Wickard V. Filburn made it clear that an object never had to have been involved in interstate movement to be considered a part of interstate commerce. Homemade guns impact interstate commerce because they compete with guns made out of state.

Wickard basically said the feds can stick their noses anywhere they damned well please,

 

[MachIVshooter]

Wrong again. see, for example:

1. U.S. v. Ballinger, 395 F.3d 1218 (11th Cir. 2005), at 1242:
   
   ​
   
   
2. U.S. v. Carroll, 105 F.3d 740 (1st Cir. 1997), at 742:
   
   ​
   
   
3. U.S. v. Griley, 814 F.2d 967 (4th Cir. 1987), at 973:
   
   ​

Once again, you fail to get things correct because you don't do the research.

Commerce: the exchanging, buying, or selling of things having economic value between two or more entities

Even if we take away the economic value component, you still can't have commerce without an exchange/transfer.

In 1, STILL: must prove only "that the firearm possessed traveled in interstate commerce,"

In 2, some cherry picking here with a child pornography case, and satisfying the interstate commerce component was two-pronged. As for the first, internet dispersion of photographs puts other people in other states (and around the world) in possession of the photos. A transfer. We can't transfer firearms and other physical things as bits & bytes online, and no interstate transfer occurs if the resident of one state does not give/sell/trade to a resident of another. They also demonstrated intent to transport the film to another state for development, an interstate transaction as any where the resident of one state pays for goods or services in/from another state. That's interstate commerce.

Carroll took the photographs with the intention either to have them developed out of state, or to put them on the Internet, or both......... he intended to use the sexually explicit photographs to promote his embryonic dating service.

In 3, Has nothing to do with defaced S/Ns, and commerce between the manufacturer and the US government had occurred. Also being a bit furtive there, kinda left out the part where the machine gun, which cannot be legally transported interstate by a non-SOT without an approved form 5320.20, was stolen and transported across state lines by the thief, who then physically transferred it to another party in another state. That particular language in this case is in the context of 26 U.S.C., and wholly different rules apply to NFA items. Find me a case where any person was successfully prosecuted citing interstate commerce simply for crossing state lines with a GCA firearm when no transfer occurred.

 

[Frank Ettin]

Commerce: the exchanging, buying, or selling of things having economic value between two or more entities

Even if we take away the economic value component, you still can't have commerce without an exchange/transfer.....

Not according to the courts.

I understand that you're a fine machinist and make excellent suppressors. But that doesn't qualify you to play lawyer. As I've often pointed out, much in the law is non-intuitive or will make sense only when one has sufficient background knowledge. You can't expect to be able to figure out what the law is or how it works just by trying to "reason it out." One needs to do the research, study cases, and do the reading.

 

[Frank Ettin]

We're done here.