Tag Archives: Legal

National Legal Update: Hearing Protection Act Rolling Into Bigger Bill

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The Hearing Protection Act has been attached to the SHARE Act, a sportsman’s omnibus bill with a lot of pro-gun features. Among those features, the SHARE Act (Sportsmen’s Heritage and Recreational Enhancement Act) would do the following:

  1. Moves silencers/suppressors from Title II to Title I status.
  2. Enhances the Firearms Owners Protection Act (FOPA) language to include travel by means other than vehicles.
  3. Creates remedies against states that violate the safe travel provisions, including a cause of action and attorneys fees.
  4. Eliminates the sporting-purposes language from the Gun Control Act of 1968 and the law on armor-piercing ammunition.
  5. Creates a blanket exception for shotguns to prevent arbitrary reclassification as destructive devices.

“The Hearing Protection Act has been one of the most important bills for sportsmen and women this Congress, which is why it’s common sense for it to be included in this year’s sportsman’s legislative package,” Rep. Jeff Duncan (R-S.C.) Duncan, the bill’s sponsor, told POLITICO. “By changing the outdated regulation of suppressors to an instant background check, just like the requirements to purchase a typical firearm, I hope the sportsmen and women in the United States will have greater access to noise reduction technology as they carry the hunting and recreational shooting tradition to future generations.”

“If this bill passes,” said Texas & U.S. Law Shield Independent Program Attorney Michele Byington, “it will make suppressors Title I items like firearms—that is, not National Firearms Act devices—which means they will become more common and more widely transported. However, at least 10 states will likely ban suppressors even if this becomes law. About the same number of states have some kind of restriction on ammunition-feeding devices, also known as magazines. FOPA safe travel won’t do us much good if gun owners can still be arrested for magazines and accessories.”

“Attaching the HPA to a bill that should be easier to pass suggests that Congressional Republicans may have become serious about actually passing this,” she said. “Passing this bill would be a big win.” —Texas & U.S. Law Shield Staff

 

 

Check out these other great articles from U.S. Law Shield and click here to become a member:

 

The “purple paint law” became official in Texas on September 1, 1997. The law doesn’t appear to be common knowledge for every hunter in the Lone Star State, even though Texas hunting regulations describe it.
Can your employer restrict your ability to carry firearms at the workplace? Click to watch Emily Taylor, Independent Program Attorney with Walker & Byington, explain that in Texas, employers call the shots regarding workplace self-defense.
In this excerpt from a U.S. Law Shield News live report, watch Emily Taylor, independent program attorney with Walker & Byington, discuss the ground rules for carrying firearms into restaurants and bars. Click the video below to find out the significant differences between blue signs and red signs in Texas establishments, and how getting those colors crossed up could lead to some orange jumpsuit time.   If you would like to see these reports live on Facebook, click here to join the Texas Law Shield Facebook page and sign up for live notifications.

Gun store employees trade gunfire with fleeing men. Was it legal?

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James Hillin, owner of Full Armor Firearms, knows it is “my responsibility to make sure we are doing the right thing” when it comes to selling guns. Photo: Jon Shapley, Houston Chronicle Staff

Perhaps you heard what recently happened to our friends at Full Armor Firearms in Houston.

After 13 burglaries in five years, including one earlier this month, owner James Hillin asked two of his employees to stay overnight in the store.

During the night, two cars pulled into the parking lot. According to the Houston Chronicle, when the Full Armor workers stepped outside with their weapons, one of the five men, who were standing near the employees’ cars, shot at them. The employees were not injured, and gunfire was exchanged as the men drove away.

You can read the whole story, including an interview with owner James Hillin, the criminal backgrounds of the men who were detained, and the likelihood of the case being presented to a grand jury here:

http://www.houstonchronicle.com/news/houston-texas/houston/article/Gun-store-employees-trade-gunfire-with-fleeing-

We asked Michele Byington, an attorney at the law firm of Walker & Byington, PLLC, and independent program attorney for Texas Law Shield, for her opinion on the situation and she says the employees were acting legally.

“Here in Texas, both burglary and theft during the night time are considered crimes against which a person may use deadly force. In fact, displaying a firearm to cause apprehension that you will use it if necessary, is considered force, rather than deadly force. So the employees, even though they potentially could have used deadly force, were just using force to stop this situation when they displayed their AR-15s.”

She went on to explain that, while there are very few circumstances where you can shoot a person who is fleeing (and even then, she added, it will be an uphill battle with a jury), the fact that the criminals shot at the employees while running away, justified the return fire by the employees.

“Any time a person has a reasonable belief they are in immediate danger of death or serious bodily injury, they may use deadly force to defend themselves. And someone shooting at you definitely qualifies for that!”

Ultimately, Michele stated, the gun store employees acted well within the confines of the law.

Giving Guns as Gifts: Doing It Right

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A Christmas story with AR 15

If you plan to make a gift of a firearm to a family member, close friend, or relative this season, there are right ways to do that — and some very wrong ways to transfer firearms to loved ones, say Texas & U.S. Law Shield Independent Program Attorneys.

Ownership of a firearm has serious legal implications that other consumer products don’t. So let’s look at some questions you may have about giving a firearm as a gift this holiday season.

Gift Certificates Make the Process Simple

Texas Law Shield Independent Program Attorney Emily Taylor said, “The ATF recommends that if you want to give someone a new firearm, rather than going to a gun store, buying it, and giving it to someone, purchasing a gift certificate from a retailer and giving that as the present makes the process easy.”

“That way,” she said, “the recipient will get the exact gun he or she wants, and there’s no question about who is ‘the actual buyer of the firearm,’ which is a question any purchaser must certify on the Federal Form 4473 at the time of purchase.”

1: Can the Recipient Legally Own a Firearm?

If you decide to go ahead with giving a gun directly to the recipient, you must find out if the intended recipient can legally own a firearm where he or she lives.

“There are more than 20,000 different gun laws on the books, so the kinds of firearms that law-abiding citizens can own vary quite a lot,” said Taylor. Also, she reminded gun givers of a big restriction that many people overlook: Juveniles under the age of 18 generally may not possess a handgun.

Check out the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) website for more details.

army santa

2: Know the Recipient Very Well

Taylor pointed out that gift givers must not ever transfer a firearm to someone they know legally can’t own one. That’s a federal felony, so if your sketchy brother-in-law may be disqualified from owning firearms, don’t take the chance. It’s also worth pointing out that if you even have reasonable cause to believe the recipient can’t legally own a firearm, that’s enough to get the giver prosecuted under the law.

3: In-State Transfers Are Easier

There’s no federal law that prohibits a gift of a firearm to a relative or friend that lives in your home state. Abramski v. United States, a recent Supreme Court decision involving a “straw purchase” of a firearm, did not change the law regarding firearms as gifts.

According to the National Shooting Sports Foundation, there are a handful of states that currently require in-state firearm transfers to run through a local firearms retailer. This ensures an instant background check will be performed to make sure the recipient is not legally prohibited from owning the gun. This is the law in California, Colorado, Connecticut, Delaware, New York, Oregon, Rhode Island, and Washington State. Also, the District of Columbia Maryland and Pennsylvania require a background check for private-party transfer of a handgun.

Taylor said, “There are exceptions, so it’s important to carefully check the law of your state, ask your local firearms retailer, or call Independent Program Attorneys in these states to get clarifications on the law.”

4: Getting the Gift There

If you would like to gift a firearm to someone in another state, you may not simply ship handguns or long guns to that person. If you would like to transfer a gun to an individual in another state, this must be accomplished by using Federal Firearms License Dealers as an intermediary between the individual parties.

Carriers vary in the types of firearms they are willing to transport, and in the specific rules they impose. Taylor added, “With all carriers, federal law requires you to declare that your package contains an unloaded firearm. To be safe, always consult your carrier in advance about its regulations for shipping firearms.”

5: Family Transfers of Meaningful Firearms

During the holiday season, many families want to pass down meaningful firearms to the next generation. What if you want to give a family firearm to your son or daughter?

firearm family

Of course you can, Taylor said, but she points out that some states require even inter-family transfers to go through a licensed retailer.

“It’s worth emphasizing,” Taylor said, “that you can never transfer a firearm directly to another person who is a resident of a different state. In that case, you must transfer the firearm through a licensed retailer in the state where the person receiving the gift resides.”

If you do it right, giving someone a hunting rifle, a waterfowling shotgun, a plinking handgun, or many other types of firearms can be rewarding gifts. Just keep in mind there are right ways to make the exchange, and wrong ways. It’s better to know the law and follow it closely so the gift-giving is above board and completely legal. — Texas & U.S. Law Shield Staff

 Emily Taylor is an Independent Program Attorney at Walker & Byington

U.S. Law Shield: Untraceable “Ghost Guns” On the Rise, But Are They Legal?

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Ghost Gun .(AP Photo/Rich Pedroncelli)
Ghost Gun (AP Photo/Rich Pedroncelli)

Gun enthusiasts and hobbyists have long been building their own firearms by purchasing lower receivers or kits and other parts needed to assemble a firearm.

The lower receiver is a small block of metal about the size of a deck of cards where the trigger mechanism is housed and where bullets pass through. A gun cannot function without it. A finished lower receiver is the piece of the firearm regulated by federal law and must contain a serial number stamped into it.

Technology today and the hundreds or even thousands of websites selling lower receivers, kits, and parts over the internet makes it even easier. There are no background checks required to purchase these lower receivers or kits.

There are no federal restrictions on an individual making a firearm for personal use, so long as it does not violate the National Firearms Act (NFA), according to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).

The ATF has long held that items such as receiver blanks, “castings” or “machined bodies” in which the fire-control cavity area is completely solid and un-machined have not reached the “stage of manufacture” which would result in the classification of a firearm per the Gun Control Act of 1934 (GCA). That stage is “80 percent complete.” ATF regulations hold that receiver blanks that do not meet the definition of a “firearm” are not subject to regulation under the GCA.

Furthermore, under federal law, no serial numbers are needed on firearms that are built for personal use, making them untraceable by law enforcement.

By leaving the lower receiver unfinished— meaning only partially drilled — it fails to meet the ATF’s requirement of being more than 80 percent complete and is therefore not considered a “firearm” subject to regulations. Buyers can finish the receivers at home by finishing the drilling.

The ATF refers to such guns as unfinished receivers, though they’re also called 80 percent receivers, home built firearms, or “ghost guns.”

And it’s all perfectly legal.

These self-assembled and untraceable “ghost guns” are becoming increasingly more popular amongst gun enthusiasts across the country and is becoming big business for parts manufacturers and for dealers selling kits.

Elite Custom Railing in Holly Hill, Florida, for example, specializes in unfinished lower receivers for a do-it-yourself AR-15. A company spokesperson said they sell between 100 and 150 lower receivers each day.

It is just one of six companies in Volusia County alone engaged in manufacturing and/or selling kits or unfinished receivers that allow buyers to assemble military-style, semi-automatic rifles at home.

Another Volusia County company, Stone Mountain Gold ‘n Guns in DeLand, will sell the “80% receivers” to a customer only in person and not over the internet as others in the county do. A manager said he will complete the sale only if he feels comfortable with the person buying the receiver. Stone Mountain sells about 20 a month, according to the manager.

The ATF and some law enforcement agencies have expressed a concern about these homemade firearms, believing that the availability of the untraceable receivers will encourage criminals and terrorists to start building their own weapons.

Port Orange Police Chief Thomas Grimaldi said in an interview in the Daytona Beach News-Journal, “We’re making it easy for the criminals. I have a concern — a huge concern over that.”

Mary Salter, ATF Tampa Field Division public information officer, believes some criminals are purchasing non-serialized and therefore untraceable firearms because their intent is to commit crimes.

“ATF, and law enforcement, in general is seeing homemade firearms without serial numbers at crime scenes,” Salter said. “Tracing firearms found at crime scenes to the original purchaser is a valuable tool in law enforcement,” Salter added. “When a homemade firearm is found at a crime scene, investigators are left with a dead end, where a trace of a firearm may generate valuable investigative leads.”

“With advancements in technology in regards to 3D printers,” Salter said, “CNC milling machines, and the availability of receiver blanks, it has become much easier for a person to build a firearm. “When a “homemade firearm is found at a crime scene, it means investigators are virtually left with a dead end,” said Salter.

And in California, Graham Barlowe, resident agent in charge at the ATF’s Sacramento Field Office, said he started seeing crimes involving untraceable guns about two years ago. In November of this year, Barlowe’s undercover agents arrested eight men for manufacturing and selling illegal firearms, seizing about 90 un-serialized firearms out of the more than 230 illegal firearms found. His agents have also found electronic mills that carve a complete receiver in 12 minutes.

“It is one of the biggest problems in Northern California for our office, if not the biggest problem,” Barlowe says. He estimates that his office has seized about 500 un-serialized receivers since 2013.

The Santa Monica shooter, John Zawahri, used a rifle made from parts he purchased online to kill himself and five others on June 7, 2013.

atf-receiver-1
From ATF.

And in neighboring Arizona, between 2009 to 2011, ATF reported that it seized 191 of the 80 percent receivers in Tucson that were headed to Mexico to be assembled, possibly by cartels.

In Florida, law enforcement officials claim the unregistered guns can make it easy for criminals to arm themselves with untraceable weapons.

However, others disagree with that assessment, claiming the skill and equipment necessary to build the firearms is anything but easy and, therefore, makes this approach more costly and time-consuming than simply acquiring an already completed firearm. A milling machine (or at least a milling guide kit), for example, can cost around $1,500, and it could take weeks to complete an AR-15 kit.

And to complete an unfinished lower receiver, a person must carefully mill or drill out a portion of the inside of the receiver, which can take many painstaking hours. Without a properly milled lower received, a functioning firearm would be impossible to produce.

Many believe manufacturing a homemade weapon is generally too costly, too troublesome, and too expensive for criminals.

Furthermore, FBI statistics indicate semi-automatic weapons are used in less than one percent of crimes in the U.S. Most criminals use handguns, and most guns used in crimes are stolen. Criminals looking to buy a weapon can get them from private sales without a background check and do not have to go through the trouble and expense of building their own rifle.

Rob Dunaway, President of American Spirit Arms in Scottsdale, Arizona, says most of the customers who buy the incomplete receivers are people who like to personalize their semi-automatic rifle and or more worried about changes to the gun laws.

“Some people buy them to store them for potential future use,” Dunaway said.

Previous attempts to regulate “ghost guns” in California failed, when a bill that would have allowed the manufacture or assembly of homemade weapons but required the makers to first apply to the state Department of Justice for a serial number that would be given only after the applicants underwent a background check, was vetoed by Governor Jerry Brown in 2014.

However, earlier this year, Gov. Brown did sign a bill requiring people who build guns from these 80% receivers to register them and get a serial number. That law takes full effect in 2019. — by Michael Wisdom, Senior Contributing Editor, Texas & U.S. Law Shield Blog

Do you believe “ghost guns” or the 80 percent receivers pose a serious problem? Should you have to undergo a background check to even buy an 80 percent receiver or kit before you are allowed to build your own firearm for your own personal use? Should you have to register a firearm you build yourself and obtain a serial number? Let us know what you think.