When it isn’t a gun.
When I saw this report…
How Academy Sports Could Be At Fault For Sutherland Springs Because Of A Firearm Accessory
A state district judge in San Antonio ruled Monday that relatives of the victims of the First Baptist Church in Sutherland Springs can sue Academy Sports, the Katy-based sporting goods chain that sold the shooter the rifle he used in the 2017 attack.
… I expected BS. When I saw this…
Timothy Lytton, professor at Georgia State University College of Law, says this could have implications nationwide because the judge ruled that Academy broke a federal law.
… I knew I’d found it. I happen to be familiar with Lytton, from correspondence last year.* Lytton has expressed outrage that: “Designs include handguns and semi-automatic assault-style weapons. Federal background check laws applicable to the physical sale of firearms do not apply to the electronic posting of digital blueprints”.
Mainly because electronic files aren’t firearms. He could never quite grasp that point. And while he seems vaguely aware of NICS, he’s a little hazy on other laws: “Since the 1980s, anyone can purchase the most lethal of firearms
free from all legal restrictions.”
W. T. F?
But this comment he made in a column last year is very, very important to our current discussion.
“Gun parts – as opposed to whole guns – are not subject to any of the federal regulations that govern firearms sales. No federal license is necessary to sell gun parts. And no background check is needed to purchase them.”
Gun parts. That’s… partially true. AR lowers, drop-in auto sears, and any receiver more than 80% complete require an FFL to sell commercially (and in the case of the DIAS, NFA applies). The ATF famously once classified a shoestring as an NFA-regulated machinegun.
But not magazines.
Which brings us to the Academy Sports “negligence” lawsuit. Academy Sports in Texas sold an AR with a 30-round magazine to the shooter-to-be, who presented himself (complete with ID) as a Colorado resident. The buyer passed a NICS check (thanks, negligent USAF). The magazine — unlawful in Colorado, which is why Magpul left the state — is the basis of the suit.
Texas judge lets Sutherland Springs church shooting victims sue gun retailer
The plaintiffs reportedly argue that the chain was liable for the shooting because employees at its retailer in San Antonio sold Kelley a high-capacity magazine that was illegal in his home state of Colorado.
The two sides reportedly sparred at a hearing Thursday over whether the federal definition of a firearm includes any magazine sold with it, and whether a Colorado law that bans the sale of high-capacity magazines applies to Colorado residents who make the purchase in Texas.
There was no need for “sparring.” The judge should have tossed the suit with a sneer.
The applicable federal regarding interstate long gun sales is 18 U.S. Code § 922(b)(3):
(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;
“Any firearm,” not any “firearm part,” or “accessory.” The ATF regulates AR lowers by calling them firearms. Drop-in auto sears are “machineguns.” How does federal law define “firearm,” or “rifle” in this case?
26 U.S. Code § 5845(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.
No mention of magazine there. No “or any ammunition feeding device for same.”
18 U.S. Code § 921(a)(3)
The term “firearm” means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.
So federal law defines firearms and rifles, but doesn’t mention magazines as a part of either. In this case, we have to fall back on state law.
Does Colorado — the formal state of residence of the shooter — call magazines “firearms” in state law?
(2)(h) “Firearm” means any handgun, automatic, revolver, pistol, rifle, shotgun, or other instrument or device capable or intended to be capable of discharging bullets, cartridges, or other explosive charges.
No magazine there. In fact, 18-1-901(2)(e) makes it clear that that a firearm is a firearm whether or not it is loaded:
(e) “Deadly weapon” means:
(I) A firearm, whether loaded or unloaded; or
The magazine is extraneous to the firearm.
Let’s go a little deeper into Colorado law. Colorado does separately define large-capacity magazine.
(2) (a) “Large-capacity magazine” means:
(I) A fixed or detachable magazine, box, drum, feed strip, or similar device capable of accepting, or that is designed to be readily converted to accept, more than fifteen rounds of ammunition;
(II) A fixed, tubular shotgun magazine that holds more than twenty-eight inches of shotgun shells, including any extension device that is attached to the magazine and holds additional shotgun shells; or
(III) A nontubular, detachable magazine, box, drum, feed strip, or similar device that is capable of accepting more than eight shotgun shells when combined with a fixed magazine.
(b) “Large-capacity magazine” does not mean:
(I) A feeding device that has been permanently altered so that it cannot accommodate more than fifteen rounds of ammunition;
(II) An attached tubular device designed to accept, and capable of operating only with, .22 caliber rimfire ammunition; or
(III) A tubular magazine that is contained in a lever-action firearm.
To Colorado, “large-capacity” magazines are a thing unto themselves, not firearms.
18 U.S. Code § 922(b)(3) restricts the interstate sales of firearms. It does not restrict the sale — interstate or intrastate — of accessories, whether scopes, slings, muzzle brakes, or magazines — which even Colorado doesn’t consider firearms. It simply doesn’t apply. Right, Prof. Lytton? (“Gun parts – as opposed to whole guns – are not subject to any of the federal regulations that govern firearms sales.”)
While Colorado statute 18-12-302 generally bans possession of “large-capacity” magazines themselves, I have to question whether that law would apply outside of Colorado.
Out of state? Of an object that was never alleged to have been in Colorado?
“Gun parts – as opposed to whole guns – are not subject to any of the federal regulations that govern firearms sales.”
* From there, Lytton devolved into incorrectly describing the outcome of a lawsuit revolving about “MAC-10s,” misstating my positions, and evading nearly every question I asked. I can make copies of our exchange publicly available should he wish to dispute my account.
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