Redefining “firearm”. Again.

An interesting legal theory.

Academy sporting goods chain sued by couple wounded in Sutherland Springs church shooting
On Friday, Rosanne Solis and Joaquin Ramirez sued Academy Sports + Outdoors for selling Devin Patrick Kelley a Ruger AR-556 with 30 round capacity magazines. While this model is legal in Texas, Kelley was a resident of Colorado, where it’s illegal to sell, possess or manufacture magazines with capacities over 15 rounds.
[…]
Emily Taylor, a gun law expert in San Antonio, said she believes Solis and Ramirez have a case. Federal law prohibits licensed gun dealers from selling to residents of other states unless the buyer meets them in person and the sale “fully” complies “with the legal conditions of sale in both such States.”

IANAL, yada yada…

Not quite, Taylor. Federal law prohibits licensed gun dealers from selling firearms to residents of other states, with exceptions.

18 U.S. Code § 922(b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver—
3) any firearm to any person who the licensee knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the licensee’s place of business is located, except that this paragraph (A) shall not apply to the sale or delivery of any rifle or shotgun to a resident of a State other than a State in which the licensee’s place of business is located if the transferee meets in person with the transferor to accomplish the transfer, and the sale, delivery, and receipt fully comply with the legal conditions of sale in both such States (and any licensed manufacturer, importer or dealer shall be presumed, for purposes of this subparagraph, in the absence of evidence to the contrary, to have had actual knowledge of the State laws and published ordinances of both States), and (B) shall not apply to the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;

And “firearm”? “Rifle”?

26 U.S. Code § 5845Firearm
The term “firearm” means (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun; (7) any silencer (as defined in section 921 of title 18, United States Code); and (8) a destructive device. The term “firearm” shall not include an antique firearm or any device (other than a machinegun or destructive device) which, although designed as a weapon, the Secretary finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector’s item and is not likely to be used as a weapon.

No mention of magazines in federal law there.

(c) Rifle
The term “rifle” means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed cartridge.

Nor there.

As best I understand the laws, federal restrictions are not on magazines; just firearms. Dealers in other states aren’t responsible for complying with Colorado laws on non-firearms. For this case to fly, Solis and Ramirez will have to convince the jury that a magazine is a rifle component that — just as a drop-in auto sear is a “machinegun” — constitutes a firearm in its own right.

If I were on the jury, they would have to come up with a remarkably persuasive argument to convince me of that. Personally, I think the DIAS=machinegun bit is ridiculous, but at least it’s codified in law. Magazine=firearm is not.

But gun controllers would love it, as such a ruling would make magazines into firearms, subject to all the licensing for manufacture and sale, and background checks by FFLs.

Serial numbers. Bound book entries. Inspections.
https://www.law.cornell.edu/uscode/text/26/5845
And, if magazines are guns, what of the existing millions of unserialized commercially sold magazines?


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6 thoughts on “Redefining “firearm”. Again.”

  1. Point of order (and IANAL, either): IIRC, federal law only prohibits firearms dealers from selling handguns to residents of other states. Rifles and shotguns are legal to sell, as long as the transfer is: a) done face-to-face, and b) legal in both states.

    In fact, I don’t have to recall correctly — it’s right there in the block-quoted passage: “…except that this paragraph (A) shall not apply to the sale or delivery of any rifle or shotgun to a resident of a State other than a State in which the licensee’s place of business is located if the transferee meets in person with the transferor to accomplish the transfer, and the sale, delivery, and receipt fully comply with the legal conditions of sale in both such States….”

    And still it only applies to firearms, not accessories (including magazines). For all we know, Scumbag ordered standard-capacity magazines online and had them delivered to a PO box anywhere.

    Besides which, as a “military” customer, isn’t he exempted from the magazine ban?

    They have no case. Whoever this “Emily Taylor” is, I don’t think she’s quite the “gun law expert” they claim she is….

    1. And in my post: “…selling firearms to residents of other states, with exceptions.” The details were in the quoted law; I saw no reason to belabor that aside point.

      “Besides which, as a “military” customer, isn’t he exempted from the magazine ban?”

      Not as I understand it. The Sutherland Springs shooter wasn’t military, having been court-martialed and discharged.

      1. I know, that’s why “military” was in quotes.

        However, having been court-martialed and dishonorably discharged should have disqualified him from firearms ownership for life, but the USAF didn’t report it to NICS. If Scumbag had presented a military ID at the point of sale to show an exemption (if one were even required for a non-firearm), a reasonable person would assume it’s valid, especially after the federally-required PPYI check came back clean.

        It just shows yet another reason the fault is NOT with the dealer, having done their due diligence, and the plaintiffs have no case. The only way the lawsuit succeeds is if the court accepts the premise that selling firearms to anyone — including police and military buyers — carries full civil liability for any and all wrongdoing on the part of the buyer, regardless of due diligence, regardless of PLCAA, regardless of passing a PPYI check, and regardless of logic and long-standing precedent.

        All I’m saying, is that’s a crap-ton of “regardless” to overcome. 😉

        1. The Air Force failed to report a few things: an involuntary committal, felony-equivalent conviction, specific domestic violence conviction. All of those do make the shooter a prohibited person. The discharge was apparently a BCD, not a DD; BCD doesn’t make one prohibited (but does disqualify one for a Texas CCW; the shooter had once applied for a CCW and been denied, possibly because he showed his 214 to get the discount).

          As I understand the CO law, even if the shooter had been active military, that wouldn’t get him an exemption for the 30-round magazine; it has to be for official business. But that’s a moot point, since he wasn’t active mil.

          “The only way the lawsuit succeeds is if the court accepts the premise that selling firearms to anyone — including police and military buyers — carries full civil liability for any and all wrongdoing on the part of the buyer, regardless of due diligence, regardless of PLCAA…”

          Two points: 1) That isn’t their argument, according to reports; the argument is that magazines fall under the federal definition of firearms. 2) If they did make your argument, the result would be rather farther reaching, making any retailer of any product responsible for misuse of their products.

  2. So he was a resident of CO at the time of the sale, which was legal for the rifle, because he COULD possess that in CO.

    Do the plaintiffs in this mess have any proof he carried that “offensive” magazine INTO Colorado at any point in his travels? How do they know he did? He could have bought that offending mag and kept it in the State of Texas….. thus never having broken CO’s rotten law.

    Further, can plaintiffs prove beyond reasonable doubt that he COULD NOT HAVE killed anyone at that churchhouse if he had ONLY had ten rounders? Quite a few of the high profile mass shootings of late have been carried out with ten round mags.

    Defense might also consider the fact that his rifle jammed at one point… word on the street is that the standard cap mags tend to jam more often then the low cap mags legal in CO. COuld make the point that his troubles started when his standard cap mag jammed……..
    WHY not go after the Air Force desk jokey who FAILED to report his three disqualifying incidents to the FBI, thus enabling him to illegally pass the BGC with NICS? Seems THAT guy was the real enabler. And his name COULD be found out IF someone decided to check back……..

    1. “WHY not go after the Air Force desk jokey who FAILED to report his three disqualifying incidents to the FBI…”

      Not much point to that: statutory immunity.

      18 U.S. Code § 922(t)(6) Neither a local government nor an employee of the Federal Government or of any State or local government, responsible for providing information to the national instant criminal background check system shall be liable in an action at law for damages—
      (A) for failure to prevent the sale or transfer of a firearm to a person whose receipt or possession of the firearm is unlawful under this section; or
      (B) for preventing such a sale or transfer to a person who may lawfully receive or possess a firearm.

      If we must have prior restraint, I’ve recommended changing that, so they absolutely have responsibility for actions and inactions.

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