Category: Law

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?

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.

I know most of my readers already know this stuff, but I’ve been getting a lot of google traffic relating to the subject, so I thought it might be good to get something like this out there. If I got any of this wrong, feel free to correct me.

After the Virginia Tech tragedy, I’m hearing a lot of stuff in the media, particularly foreign media, that are misrepresenting the actual state of US gun control laws. First thing that ought to be understood is that gun control is mostly a state power. The federal government regulates commerce in guns for the most part, with the states regulating everything else. Most states have fairly liberal gun laws, but a few do require licensing, a few ban certain scary looking semi-automatic firearms known as “assault weapons”, a few ban machine guns, even though the feds regulate that too. But laws from state to state don’t differ all that much. Here’s how it basically works

Felons in Possession

In all 50 states it’s illegal for people convicted of a felony, and certain disqualifying misdemeanors, from purchasing, possessing, or even touching a firearm, ammunition or components. It’s illegal for someone who has been adjudicated mentally defective or committed involuntarily to a mental institution from purchase and possession of firearms. It is also illegal for anyone to knowingly transfer a firearm to someone who is prohibited from possessing them.

Point of Sale

At the point of sale, all firearms buyers have to fill out a form, called ATF 4473, present government issued identification to the dealer, and submit to a background check. Form 4473 is basically an affidavit, where you declare who you are, where you live, that you are a US citizen or resident alien, that you have not been convicted of any disqualifying offense, are not a fugitive from justice, that you’ve never renounced your citizenship, etc. Lying on this form is a felony. After that, the dealer will complete a background check to ensure that you have never been convicted of any disqualifying offenses. The background check is computerized and takes only a few minutes. Sometimes purchasers will be put into review, in which case it can take longer, up to a few days. The sale may not proceed until the background check has completed. Some states require their own forms to be filled out as well. Pennsylvania requires one for purchasing handguns, but not long guns. Many states have their own background check systems, and there is a federal system as well called NICS (National Instant Check System). Once you check out, the purchase proceeds like any other. If you are denied, the purchase may not complete, and if you are a prohibited person, the police may come arrest you, because it’s illegal for a prohibited person to even attempt to purchase a gun.

National Firearms Act

Firearms other than those which are ordinary rifles, shotguns and pistols are regulated under the National Firearms Act. These include short barreled rifles (rifles less than 26 inches overall and with barrels less than 16 inches), short barreled shotguns (shotguns less than 28 inches overall, and barrels less than 18 inches), destructive devices (cannons, grenades, rocket launchers, etc), machineguns (firearms that fire more than one shot with a single pull of the trigger), silencers and suppressors, and Any Other Weapons (AOWs, anything that’s not any of the other items. These are things like umbrella guns, cane guns, pen guns, cell phone guns).

NFA firearms are highly restricted and you can’t just go into a gun shop and buy one. The regulations vary depending on the type of NFA firearm you’re looking to be in possession of. Needless to say, machineguns and destructive devices are the most heavily restricted. They require an extensive FBI background check, fingerprinting, registration, payment of a 200 dollar transfer tax, sign off from your local police chief, all to be submitted to the ATF on Form 4. If everything checks out, in a few months you will be issued a stamp, much like the one that caused the colonists to revolt against the crown, that proves you are in legal possession. You have to inform ATF in order to move the firearm between states or to another residence. Other NFA firearms still require payment of a tax, and require the completion of a form, but aren’t quite as difficult to obtain. In 1986, Congress decided to disallow new registrations for machineguns. All machineguns that are transferable to civilians must have been registered prior to 1986. Anything not registered is illegal to possess except for military and law enforcement. It is illegal to possess any parts from which you could make an NFA weapon, or manufacture one without a license.

Carrying of Firearms

Most states allow for the open carrying of firearms for purposes of sport, recreation or self-protection. Some states require a license to carry a firearm openly. Open carrying of a firearm is not common in populated areas, except in some parts of the southwest. Most states require a license to carry a firearm concealed on or about one’s person, or in a vehicle. Two states require no such license, Alaska and Vermont. Two states outright prohibit the carrying of concealed weapons, Wisconsin and Illinois. Several states, like New York, New Jersey, Massachusetts, California, and Hawaii severely restrict the issuance of licenses to carry a concealed weapon (unless you happen to have good political connections, then you can get one). In most states, you can apply for a license to carry a concealed weapon, and if you meet certain objective criteria, which typically involves firearms and legal training, submitting to a background check and being free of a criminal record, supplying references, fingerprints, etc. Once law enforcement processes your application and clears you, you are issued a license. Most states recognize out of state licenses, but there’s considerable variation in this. I have been issued licenses by four states, Pennsylvania, Florida, New Hampshire and Washington, which, between the four of them, allow me to carry a concealed firearm in about 33 states. Typically in states where concealed weapons licenses are issued, about 1-2% of the population obtains such a license. Pennsylvania issues about 600,000-700,000 licenses, which is about 6% of the population. Some people carry regularly, most don’t. Virginia issues about 250,000 licenses in their state, but Virginia Tech prohibits firearms on their campus. Typically schools are off limits to license holders, in addition to federal buildings, national parks, establishments that serve alcohol, court houses, and a few other places. Where you can’t carry varies from state to state. Most states prohibit carrying a weapon while intoxicated.

Firearm Bans

Only one jurisdiction effectively bans firearms, and that’s Washington D.c. Chicago bans handguns, New York City heavily restricts them, so they are banned for people without money and political connections. California, Massachusetts, New York, Connecticut, and New Jersey ban semi-automatic versions of certain military rifles.

Constitutional Issues

In addition to the federal constitution, most states have some right to keep and bear arms provisions in their state constitutions. The states that lack them are the ones that most severely restrict firearms ownership. The Supreme Court of the United States has only ever heard one second amendment case, and failed to make a definitive ruling in that case as to what the second amendment did or did not protect. Thus, the second amendment has not been incorporated under the fourteenth amendment and been made to apply to the states. So the states without right to bear arms provisions in their state constitution have restricted firearms to some degree. Washington DC’s ban is currently being challenged in federal court. It’s unclear whether the Supreme Court will take the case. So far the DC circuit court has nullified the DC gun ban as unconstitutional, but the final say on that issue has not been had.

So there it is in a nutshell. Media machinations about being able to buy machines guns over the counter at Wal-Mart are grossly exaggerated. Yes, US guns laws are remarkably liberal compared to other countries around the world, but it’s not a free for all. They are still a regulated product.