Important Posts Rescued

[LESchwartz]

Here are some old posts rescued using Google that were posted before the old board crashed

Larry

[LESchwartz]

Dear Sir or Madam:

I am writing to request clarification regarding ATF’s current legal stance regarding the use of detachable magazines in SKS Carbines. I own several SKS Carbines and desire to know as accurately as possible the legal status of these. In general, your previous responses have been helpful. Despite these, I am still left with unanswered questions regarding 18 U.S.C. 922(r):

The “Federal Firearms Regulations Reference Guide” (2000 edition) contains a list of characteristics which would identify a semiautomatic rifle as not suitable under the sporting purposes test for importation in 18 U.S.C. 925(d). These characteristics include “the ability to accept a detachable magazine, folding/telescoping stocks, separate pistol grips, ability to accept a bayonet, flash suppressors, bipods, grenade launchers, and night sights. The reference guide then mentions that any of these military features, other than the ability to accept a detachable magazine, would make a semiautomatic assault rifle non-importable. Thus in and of itself a detachable magazine is not a prohibited feature.

Further, a letter from ATF was printed in the NRA magazine, American Rifleman, May 1994, p.44. That letter provided guidance to SKS owners and has since achieved wide circulation. It commented that the “following modifications of an SKS type rifle would not be a violation of Section 922(r)…replace the fixed magazine with a detachable magazine. This modification may be done provided the bayonet mount is completely removed from the rifle.” Thus, it would appear that as late as 1994, detachable magazines were allowed on SKS Carbines if no other military features were present.

I further understand that in April 1998, the “Department of The Treasury Study on the Suitability of Modified Semiautomatic Rifles” resulted “in a finding that the ability to accept a detachable large capacity magazine originally designed and produced for a military assault weapon should be added to the list of disqualifying military configuration features identified in 1989.” The study referred to such magazines as “large capacity military magazines”, and later seemingly enumerated these as “a detachable large capacity magazine (e.g., more than 10 rounds) that was originally designed and produced for one of the following military assault rifles: AK47, FN-FAL, HK91 or 93, SIG SG550, or Uzi.” It is notable that magazines for SKS carbines are not mentioned.

The type of detachable magazine available for use in standard SKS Carbines is the “duckbill-style”. “Duckbill-style” magazines are not in any way interchangeable with the AK47-style magazines with which some Chinese SKS Carbines were imported. To the best of my knowledge, the “duckbill-style” magazine has never been in military use in any nation. Thus despite the fact that these magazine are available in capacities greater than 10-rounds, it would seem that the “duckbill-style” magazine is not a “large capacity military magazine”

In view of the foregoing, I have two questions:

1) Is adding “duckbill-style” detachable magazine to a standard SKS Carbine which has no military features a violation of 18 U.S.C. 922(r)?

2) If this modification is a violation, why is this so? Please make reference to any additional material that would help to illuminate this matter, especially since the “duckbill-style” detachable magazine does not seem to be a LCMM.

I sincerely appreciate your efforts in responding to this letter.

LESchwartz

Dear LESchwartz

This refers to your letter to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Firearms Technology Branch, dated September 24,2003, asking about the modification of an SKS rifle to permit acceptance of a detachable "duckbill-style" ammunition magazine.

Title 18, United States Code (U.S.C.), Chapter 44, Section 922(r), states, in part, that it shall be “unlawful for any person to assemble from imported parts any semiautomatic rifle or any shotgun which is identical to any rifle or shotgun prohibited from importation under Section 925 (d) (3) of this chapter as not being particularly suitable for or readily adaptable to sporting purposes….”

Currently, SKS rifles capable of accepting a large capacity ammunition-feeding device are prohibited from importation. Therefore, modifying an SKS to accept a large capacity ammunition-feeding device would be a violation of 922 (r).[/b]

We thank you for your inquiry and trust the foregoing has been responsive.

Sincerely yours,

Sterling Nixon
Chief, Firearms Technology Branch

So there you have it. As we suspected, because "duckbill-style" mags are available in "large capacity" they cannot be added to an SKS rifle (without winning the 10-or-less-game).

Larry

[LESchwartz]

November 11, 2003

Dear Sir or Madam:

This is a follow up to your letter of October 27, 2003 in which you respond to questions regarding ATF’s legal stance toward the use of detachable magazines on SKS Rifles. Thank you for your response, the information was most helpful. However, I have one follow up question on a related subject.

In the third paragraph of your response, you state the following: “Currently, SKS rifles capable of accepting a large capacity ammunition-feeding device are prohibited from importation. Therefore, modifying an SKS to accept a large capacity ammunition-feeding device would be a violation of 922 (r).”

Your use of the phrase “large capacity ammunition-feeding device” can imply more than just the specific case of detachable magazines about which I inquired. By your use of this phrase did you mean to imply that modifying an SKS to utilize a large capacity fixed magazine is also a 922(r) violation?

I sincerely appreciate your efforts in responding to this additional question.

LESchwartz

U.S. Department of Justice

Bureau of Alcohol, Tobacco,
Firearms and Explosives

MAR 10, 2004
903050:CLB
3311/2004-130

www.atf.gov

Dear Mr. LESchwartz:

This refers to your response letter dated November 18, 2003, to ATF, Firearms Technology Branch, asking for further clarification regarding SKS-type rifles that have been modified to accept high-capacity, ammunition-feeding devices.

As you may be aware, 18 U.S.C. 922(r) states, in part, that it “shall be unlawful for any person to assemble from imported parts any semiautomatic rifle or any shotgun which is identical to any rifle or shotgun prohibited from importation under section 925(d)(3) of this chapter as not being particularly suitable for or readily adaptable to sporting purposes.”

SKS rifles capable of accepting detachable or fixed “large capacity ammunition feeding devices” are prohibited from importation. Therefore, modifying an SKS to accept a detachable or fixed large capacity ammunition feeding device would be in violation of 922(r).[/b]

We thank you for your inquiry and trust that the foregoing has been responsive to your request.

Sincerely yours,

Sterling Nixon
Chief, Firearms Technology Branch

I had hoped I wouldn't have to post this . . . just don't "kill the messenger"

Larry

PS: You can still add "compliance parts" (to win the "10-or-less-game").

[LESchwartz]

I received a telephone call from Sterling Nixon this AM. I was driving in the car, and didn't have time to think of any questions to ask him. He was very specific about three points:

1) Adding a scope to a Yugo does not void the C&R status. This is good news! When I mentioned that this was not the same as an earlier letter I received, he suggested that the earlier letter was not the whole story. I got the feeling that in general adding a scope to a typical C&R rifle would void the C&R status. But on the SKS it wouldn't since in the SKS typically uses add-on mounts.

2) Permanently removing the bayonet or the G/L definitely voids the C&R status. Sorry but I completely spaced asking about "California Yugos" until after I hung up. So, there's still a question in my mind about whether they should have been able to keep the bayonet.

3) I received a mild "dressing down" about my large number of letters to ATF regarding the various SKS. I got the feeling that folks who sportsterize Yugo SKS's are becoming a real headache for Mr. Nixon and his staff, and that these are consuming large amounts of their time.

As for me, I feel like I've gotten all of my questions answered, so I will let others ask about other issues.  

Larry

Edited 7/14/04 to add the following note: Remember that 922(r) only prohibits "assembly" of a offending firearm. Thus is you personally didn't remove the GL on your CA Yugo, you haven't broken any Federal law. Just remember that not to transfer the rifle as C&R should you sell it. However, if you're like me, and you like to be "squeaky clean" about this stuff. You might consider removing the bayonet anyway.

[LESchwartz]

Originally posted by "Bob the German":

Dear Mr XXX

This refers to your letter of XXX to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Firearms Technology Branch, in which you ask numerous questions regarding modifications to a Yugoslavian M/59/66 7.62x39 semiautomatic rifle.

As your may be aware, the definition contained in 27 CFR 478.11 states "curio or relic" ("C&R") firearms as those "which are of special interest to collectors by reason of some quality other than is associated with firearms intended for sporting use or as offensive or defensive weapons." To be recognized as curio and relics, firearms must fall within one of the following categories:

(a) Firearms which were manufactured at least 50 years prior to the current date (replicas not included);

(b) Firearms which are certified by the curator of a municipal, State, or Federal museum which exhibits firearms to be curios or relics of museum interest; and

(c) Any other firearms which derive a substantial part of their monetary value from the fact that they are novel, rare, bizarre, or because of their association with some historical figure, period, or event. Proof of qualification of a particular firearm under this category may be established by evidence of present value and evidence that like firearms are not available except as collector's items, or that the value of like firearms available in ordinary commercial channels is substantially less.

Classification of surplus military firearms as C&R items based on the above definition are made regarding the weapons in their original configurations. The exchange of a broken or worn part would not remove a C&R firearm from the classification -- nor would the attachment of a telescopic sight, provided that the firearm wasn't significantly modified to accept the scope.[/b]

However, if, for example the original stock shoulder stock were removed from a Yugoslavian M59/66 and an aftermarket shoulder stock (having a pistol grip) installed, then the firearm would not be classified as a curio and relic. Similarly, if the original fixed magazine were removed and a large capacity (more than 10 round) magazine installed, the C&R classification would be voided. As compared to firearms in their original configuration, modified C&R firearms would have little or no value to licensed collectors.

Please note that licensed collectors may use their C&R firearms for recreational purposes, provided that the use of particular firearms in this manner does not violate any State or local ordinances. Also, the bayonet and grenade launcher may be removed for shooting purposes without affecting the C&R classification of the firearm.[/b]

Enclosed for further information on this subject are the following two pamphlets: Assembly of Semiautomatic Rifles and Shotguns from Imported Parts Under 18 U.S.C. Chapter 44 and Semiautomatic Assault Weapons and Large Capacity Ammunition Feeding Devices Under 18 U.S.C. Chapter 44.

We thank you for your inquiry and trust the foregoing should be helpful.

Sincerely yours,

Sterling Nixon
Chief, Firearms Technology Branch

I just recieved a letter from the ATF in which I asked about the following things:

1. Legality of attaching a scope - The ATF replied "The exchange of a broken or worn part for another would not remove a C&R forearm from the classicication--nor would the attachment of a telescopic sight, provided that the firearm wasn't significantly modified to accept a scope". Does this mean a scope is legal? I guess what does "significantly modified" mean?

2. Legality of changing the stock with an aftermarket stock - the ATF wrote, "However, if, for example the origional shoulder stock were removed from a Yugoslavian M59/66 and an aftermarket shoulder stock (having a pistol grip) installed, then the firearm would not be classified as a curio and relic. Does this mean that a normal aftermarket stock that is not folding or containing a pistol grip is legal?

The letter was very clear about two things the bayonet and grenade launcher can be removed! The letter states "... the bayonet and grenade launcher may be removed for shooting purposes without affecting the C&R classification of the firearm."

Thank you for your help. I will be happy to post a copy of this letter once I can figure out the directions on how to do so. In the meantime, I will type the letter out so everyone can read.

Thank you for your thoughts and insights.

Moderator's note: While this letter does mention removing the grenade launcher for "shooting purposes" it's not clear how this would be done without having to cover the threads with a soldered on muzzle break, etc.  
Thus additional clarification from ATF is required.

[LESchwartz]

GonzoSKS1 on the 1994 AWB:

When the .gov wants to prosecute a criminal, the key is (and the jury is instructed) as to the "elements of the offense."

The "elements" are what is presented in the statute.

The statues on gun laws are all "strict liability" crimes -- i.e., they do not require that you "knowingly and voluntarily" do anything. Merely possessing M16 parts and also having an AR-15 in which to install them is good enough.

To make a "prima facia" (latin for "at first sight") case, the government needs to show it can demonstrate the elements of the offense.

The "elements" of a violation of the 1994 ban, for example are set forth in the statute:

"(1) It shall be unlawful for a person to manufacture, transfer, or possess a semiautomatic assault weapon"

Which of course is defined as having the detachable mag and more than one "evil feature."

Notice that the "preban" stuff is not something that the prosecutor has to prove. It could have been drafted otherwise, for example that statute could have said: "It shall be unlawful for a person to manufacture, transfer or possess a semiautomatic assault weapon that was not lawfully possessed prior to the date of this enactment." That would have "increased" a prosecutor's burden by requiring that he demonstrate that the gun was not pre-ban.

What they did instead was say, in a separate part of the statute: "Paragraph (1) shall not apply to the possession or transfer of any semiautomatic assault weapon otherwise lawfully possessed on the date of the enactment of this subsection"

Most court cases have held that when the lawmaking body proscribes a wide swath of conduct or items, and then "carves out" an exception to such illegality, the "exception" is something we call an "affirmative defense" under the law. That means, if a Defendant can establish the elements of the affirmative defense, he can walk. But a defendant bears the burden of proving he falls into the exception, the prosecution does not have to prove he does not.

Like I said, the laws could have been drafted to make the "postban" status of the rifle a strict element of the offense itself, in which case the prosecutor would need to prove it in order to prove up the offense. But that's not how they wrote these laws.

I'd bet a good lawyer might be able to convince a good (e.g., not hyper liberal) judge that the statute should be "interpreted" -- even in its current state -- as requiring the prosecutor to prove it wasn't preban; however, I would never count on that occurring. Too risky.

On a 1994 Assault Weapons ban, vio

[LESchwartz]

GonzoSKS1 on buying fraudulent "US-made" parts:

but if I made a "good faith" effort to comply with the law and had been fraudulently sold bogus parts aren't I the victom here . . . ?

Larry,

The law doesn't contain an exception to criminal liablity for assembling a rifle with too many imported parts based on a good faith belief that you were using USA parts. Its what we call a "strict liability" crime -- there's no "mens rea" (latin for "illegal intent") element.

I'd give you the following analogy: In most states it's illegal to have sex with a woman who is under the age of consent. Period. Its a strict liability crime. If one were to sleep with an underaged woman, it would NOT be a defense that she looked old for her age, or she lied about her age, or whatever. The law IMPOSES ON YOU the obligation to perform due diligence. If you get duped, its your a$$.

I think the same thing applies here. You've got to understand that the USA parts exception is "getting off on a technicality."

Sure, after you're in prison you could conceivably go and prosecute the seller for fraud. But it ain't getting your butt out of jail.

Caveat Emptor.

[LESchwartz]

Saand's letter on modifications to 50-year-old firearms:

[LESchwartz]

Saand's letter on modifications to Romanian SKS Carbines

Moderators Note #1:  I have italicized the portions which applied to the 1994 AWB.  These can be ignored now that the ban is over.

Moderators Note #2:  Reassembling the Romanian with the bayonet should technically be a 922(r) violation, since it is no longer C&R but still has a bayonet (which is a restricted feature).  There was some discussion of this point when Saands first posted this letter.  Our conclusion was that ATF either didn't care about the bayonet (unlikely), or that it was an oversight (more likely).

Bureau of Alcohol, Tobacco, Firearms and Explosives
Firearms Technology Branch
650 Massachusetts Ave. N.W.
Room 6450
Washington, D.C. 20226

October 22, 2003

Dear Sir or Madam:

I am writing to request clarification regarding the BATFE’s current legal stance regarding modifications to an SKS Carbine of Romanian manufacture. These carbines are imported into the United States as Curios and Relics, and are available for purchase as such.

I would like to replace the wood stock on my Romanian SKS and replace it with a synthetic stock. This carbine is currently standard in all respects: fixed 10 round magazine, wood stock, and a historically correct blade bayonet.

My question is whether or not replacing the wood stock on this carbine with a synthetic stock of similar geometry and design is permissible in the eyes of the BATFE.

Thank you very much for your attention to this matter.

Sincerely,

Saands

November 6, 2003

Dear Mr. Saands,

This refers to your letter of October 22, 2003, to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Firearms Technology Branch, in which you inquire regarding the installation of a synthetic stock on your Romanian-manufactured SKS Carbine.

Basically, we find that if the rifle has an original fixed, non-detachable magazine, it would not be a prohibited semiautomatic assault weapon (SAW) as defined in the Gun Control Act of 1968 (GCA). (See 18 U.S.C. Section 921(a)(30).)  However, alterations to the rifle may still be prohibited under the GCA, per Section 922(r).  This latter section prohibits assembly of certain semiautomatic rifles from imported parts.

With respect to imported part a, one of the GCA's implementing regulations, 27 CFR Part 478 Section 478.39 (formerly part 176/Section 178.39), provides, in part, that no person shall assemble a semiautomatic rifle or any shotgun using more than 10 of the imported parts listed in paragraph (c} of 476.39 if the assembled firearm is prohibited from importation under the GCA, Section 925(d)(3), as not being particularly suitable for or readily adaptable to sporting purposes.  Paragraph (c) includes a list of 20 parts that may be found in a shotgun or rifle.

You should also be aware that the GCA, per 18 U.S.C. Section 922(v), prohibits the manufacture, transfer, and possession of SAWs as that term is defined in the above-noted Section 921(a)(30).

However, Section 922 (v)(2) excludes SAWs that were lawfully possessed under Federal law as of September 13, 1994.  Therefore, any weapon that was configured as a SAW after September 13, 1994, or any SAW that was imported after date is prohibited, regardless of its original date of manufacture.

With respect to classifications, an SKS rifle with a fixed magazine is not a SAW; however, an SKS with a detachable magazine and two or more of the following features is a SAW is defined in 921(a)(30)(B):

(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 a threaded barrel designed to accommodate a flash suppressor; and
(v)   a grenade launcher.

Federal firearms law stipulates that alteration of an SKS so that it meets the definition of "SAW" is unlawful.  (Please see the enclosed brochures for further information.)

Based on the above considerations, an SKS with a fixed magazine may be lawfully assembled with the following components:

1.   a bipod;
2.   a fixed Dragunov style stock incorporating a pistol grip; and
3.   a muzzle brake that does not function as a flash suppressor or grenade launcher.

As you describe, the modified SKS Carbine rifle would have a synthetic style stock.  Since the rifle would no longer be in its original military configuration, it would no longer be suitable for importation as a curio or relic ("C&R") item under the provisions of 18 U.S.C. 925(e).  The rifle would lose its status as a curio and relic and could not be transferred between holders of C&R licenses.

We thank you for your inquiry and trust that the foregoing has been responsive.
Sincerely yours,

Sterling Nixon
Chief, Firearms Technology Branch
 
Bureau of Alcohol, Tobacco, Firearms and Explosives
Firearms Technology Branch
650 Massachusetts Ave. N.W.
Room 6450
Washington, D.C. 20226