IS THE “MAXIM 50 SUPPRESSED MUZZLELOADER”, MANUFACTURED BY SILENCERCO, LEGAL IN THE STATE OF NEW YORK?

A reader of the Arbalest Quarrel asked us whether New York bans the Maxim 50, manufactured by SilencerCo. To answer this question, we first went to the manufacturer’s website to get a handle on what the Maxim 50 is since the manufacturer’s description of it serves as the basis for legal analysis. The central issue is whether the Maxim 50 is a firearm under Federal and New York law. If the Maxim 50 is construed as a firearm under Federal law, it comes under the purview of the National Firearms Act of 1934, and under the purview of the Gun Control Act of 1968, and, as applicable, under the purview of those Acts as subsequently amended.The manufacturer, SilencerCo, describes the Maxim 50 as an “integrally suppressed muzzleloader.” The manufacturer says:“For the first time since the National Firearms Act (NFA) was created in 1934, civilians can enjoy suppressed shooting in all 50 states with SilencerCo’s latest innovation: the integrally suppressed Maxim 50 muzzleloader. In addition, this product can be purchased right now on the web with no regulation (no 4473, no $200 tax stamp, no photographs, and no fingerprints) and be shipped immediately to the customer with few exceptions.” New York is one of those few exceptions, according to the manufacturer. SilenceCo says a prospective purchaser, residing in New York may still obtain the weapon, but must do so, not directly, through interstate commerce, shipped directly to the purchaser’s home, but, indirectly, through a holder of an FFL.

BUT, IS THE MANUFACTURER’S STATEMENT ACCURATE? CAN A NEW YORK RESIDENT, NOT UNDER DISABILITY, PURCHASE THE MAXIM 50, LAWFULLY, THROUGH A LICENSED NEW YORK GUN DEALER EVEN IF THAT NEW YORK RESIDENT CANNOT TAKE POSSESSION OF THE MAXIM 50 THROUGH THE MANUFACTURER, DIRECTLY?

Can a resident of New York, who wishes to purchase the Maxim 50 obtain it, lawfully, then, through an FFL?To begin to answer this question intelligently, we must first ask what sort of thing the Maxim 50 integrally suppressed muzzleloader is, when viewed under federal law and under New York law.Let us look at the Maxim 50 from the standpoint of Federal law, first. Two federal code sections are critical to our investigation: 26 USCS § 5845 (Definitions) of the United States Code of Title 26, Internal Revenue Code, Subtitle E; Alcohol, Tobacco, And Certain Other Excise Taxes; Chapter 53 Machine Guns, Destructive Devices, And Certain Other Firearms; Subchapter B. General Provisions and Exemptions, Part I. General Provisions; and we look to 18 USCS § 921 (Definitions); Title 18, Crimes and Criminal Procedure; Part I. Crimes; Chapter 44. Firearms. We know that the Maxim 50 is a muzzle loader, since the manufacturer of the product describes it as such, and as the manufacturer further explains its nature, in detail, in the product manual, we can rest assured that the Maxim 50 is, in fact, a muzzle loader. The question for us is whether a muzzle loader is a firearm, under federal law. For, if federal law defines the Maxim 50 as a muzzle loader, then that fact is determinative of whether the device--which, as the manufacturer says comes equipped with an integrally suppressed muzzleloader--falls under federal firearms restrictions. We begin with the assumption that the expressions ‘firearm suppressor’  and ‘firearm silencer’ refer, from a legal standpoint, essentially to the same sort of thing. The term ‘silencer’ may be a misnomer to firearms experts, but, as it is that expression, 'silencer,' that is used in federal law and in New York law, rather than the more appropriate expression, 'firearm suppressor,' we need not quibble about the relative inaccuracy of the expression, 'firearm silencer,' when considering the legality of possession of the device by the average law-abiding American citizen. The firearms expert will understand that, to the legislator and to the police, and to the lawyer, the expressions, ‘firearm silencer,’ and ‘firearm suppressor,’ and ‘integrally suppressed firearm,’ or, as in the instant case, ‘integrally suppressed muzzleloader,’ mean pretty much the same thing in respect to what it is that the component is designed to do.

IS THE MAXIM 50 A FIREARM UNDER FEDERAL LAW?

26 USCS § 5845(a) says that, “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.” 26 USCS § 5845(a). AND,26 USCS § 921(a)(3) says, “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.Through 26 USCS § 5845(a) and 26 USCS § 921(a)(3), it doesn’t appear the Maxim 50 is a “firearm.” But further clarification is necessary. We obtain that clarification in another U.S. Federal Code Section. We ask,

IS THE MAXIM 50 AN ‘ANTIQUE FIREARM’ UNDER FEDERAL LAW?

If the Maxim 50 is an ‘Antique Firearm,” then, under 26 USCS § 5845(a), it is not a ‘Firearm.’ How does federal law define an ‘Antique Firearm?’ The expression ‘Antique Firearm,’ has two definitions. If the Maxim 50 falls under either one of those two definitions, then, the Maxim 50 is an ‘Antique Firearm’ under Federal law.18 USCS § 921(a)(16) says:“The term ‘antique firearm’ means—(A)  any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898; or(B)  any replica of any firearm described in subparagraph (A) if such replica—(i)  is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or(ii)  uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or(C)  any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition. For purposes of this subparagraph, the term ‘antique firearm’ shall not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof.”AND,26 USCS § 5845(g) says, “The term 'antique firearm' means any firearm not designed or redesigned for using rim fire or conventional center fire ignition with fixed ammunition and manufactured in or before 1898 (including any matchlock, flintlock, percussion cap, or similar type of ignition system or replica thereof, whether actually manufactured before or after the year 1898) and also any firearm using fixed ammunition manufactured in or before 1898, for which ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.”The Maxim 50 is, of course, a weapon manufactured after 1898, so it doesn’t qualify as an ‘antique firearm’ under 26 USCS § 5845(g), but, it is a muzzle loader that does in fact use black powder, according to the manufacturer’s instruction manual. And, if we can infer that the Maxim 50 does not incorporate a “firearm frame or receiver” and that it cannot “be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock or any combination thereof,” then it is not a ‘firearm,’ under 18 USCS § 921(a)(16), and that is sufficient to remove the Maxim 50 from the category of ‘firearm’ under federal law.But, wait a second. Even if the Maxim 50 is an ‘antique firearm’ and, hence, not a ‘firearm’ under federal law, isn’t the Maxim 50 a “silencer?” Yes. BUT, the Maxim 50 isn’t a “firearm silencer.” That fact is crucial. But, how do we know this? We know this because federal law makes clear that, since the Maxim 50 isn't a firearm, under federal law, the Maxim 50 isn’t a “silencer” either, under federal law. Once again,18 USCS § 921(a)(3) says, “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. Since The Maxim 50, as a black powder muzzle loader  with integrally suppressed muzzleloader (silencer), isn't a firearm under federal law, then, by legal implication, the Maxim 50's silencer--more to the point, integrally suppressed muzzleloader--isn't a “firearm silencer,” under federal law, either.But, we still aren’t quite finished with our analysis. We must ask,

IS THE MAXIM 50 DEFINED AS “ANY OTHER WEAPON” UNDER FEDERAL LAW?

But, once again, the answer is, "No." The expression 'Any Other Weapon'--a generic description of 'weapon'--also finds its way in federal law. 26 USCS § 5845(g) says, “The term 'any other weapon' means any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include any such weapon which may be readily restored to fire. Such term shall not include a pistol or a revolver having a rifled bore, or rifled bores, or weapons designed, made, or intended to be fired from the shoulder and not capable of firing fixed ammunition.”The Maxim 50 cannot be readily concealed “on the person,” and, indeed, it isn’t designed to be the sort of implement to be capable of being concealed on the person. So, the Maxim 50 is not defined, in federal law as, ‘any other weapon.’So, under federal law, we conclude that the Maxim 50 isn't a firearm and it doesn't fall under restrictions of the National Firearms Act of 1934, or under restrictions of the Gun Control Act of 1968.So, under federal law, the Maxim 50 doesn’t appear to run into problems under federal law.BUT,What about New York law, specifically. Is the Maxim 50, with integrated suppressor, considered a firearm within the jurisdiction of New York?

DOES THE MAXIM 50 COME UNDER THE PURVIEW OF NEW YORK GUN CONTROL LAWS?

To some extent New York law follows the dictates of federal law, but New York law has its own twists.

IS THE MAXIM 50 DEFINED AS A FIREARM UNDER NEW YORK LAW?

We look to the Consolidated laws of New York for the answer.Let’s look at some definitions under Article 265 (Firearms and Dangerous Weapons) of the Consolidated Laws of New York. NY CLS Penal § 265.00(2) and (3) of Article 265 provide us with two definitions of importance to us here.“2. ‘Firearm silencer’ means any instrument, attachment, weapon or appliance for causing the firing of any gun, revolver, pistol or other firearms to be silent, or intended to lessen or muffle the noise of the firing of any gun, revolver, pistol or other firearms.”“3. ‘Firearm’ means (a) any pistol or revolver; or (b) a shotgun having one or more barrels less than eighteen inches in length; or (c) a rifle having one or more barrels less than sixteen inches in length; or (d) any weapon made from a shotgun or rifle whether by alteration, modification, or otherwise if such weapon as altered, modified, or otherwise has an overall length of less than twenty-six inches; or (e) an assault weapon. For the purpose of this subdivision the length of the barrel on a shotgun or rifle shall be determined by measuring the distance between the muzzle and the face of the bolt, breech, or breechlock when closed and when the shotgun or rifle is cocked; the overall length of a weapon made from a shotgun or rifle is the distance between the extreme ends of the weapon measured along a line parallel to the center line of the bore. Firearm does not include an antique firearm.”The Consolidated laws of New York do not, to the best of our information and belief, define an implement that has the characteristics of the Maxim 50. New York law does define the expression, ‘antique firearm,’ but that definition does not track the federal law definitions.NY CLS Penal § 265.00(16) says, “‘Antique firearm’ means: Any unloaded muzzle loading pistol or revolver with a matchlock, flintlock, percussion cap, or similar type of ignition system, or a pistol or revolver which uses fixed cartridges which are no longer available in the ordinary channels of commercial trade.” Under New York law the Maxim 50 is a muzzle loading device but it isn’t a pistol or revolver.It would appear, at first glance, that the Maxim 50 doesn’t come under the purview of Article 265 (Firearms and Dangerous Weapons) of the Consolidated Laws of New York. But, on closer inspection, it’s clear that the Maxim 50 does come under the purview of Article 265. Let’s look once again at NY CLS Penal § 265.00(2).“2. ‘Firearm silencer’ means any instrument, attachment, weapon or appliance for causing the firing of any gun, revolver, pistol or other firearms to be silent, or intended to lessen or muffle the noise of the firing of any gun, revolver, pistol or other firearms.” The expression, ‘firearm silencer’ refers to “any instrument, attachment, weapon or appliance . . . to lessen or muffle the noise of the firing of any gun. . . .” Pay close attention to the word, ‘gun.’The term, ‘gun,’ is an amorphous concept that can reasonably apply to the Maxim 50. New York law doesn't define the word, 'gun.' It is simply mentioned in New York law. And, we don't see a definition for the word, 'gun,' as such, defined in federal law either. So, we have to go to a common dictionary source to get a handle on the plain meaning of the word. The Merriam Webster Dictionary defines the term, ‘gun,’ as ‘a piece of ordnance usually with high muzzle velocity and comparatively flat trajectory.’ The American Heritage Dictionary, Fourth Edition, defines, the term, ‘gun,’ as ‘A weapon consisting of a metal tube from which a projectile is fired at high velocity into a relatively flat trajectory.’  Clearly enough, the Maxim 50 is a gun under New York law. Since the Maxim 50 is manufactured with an integrated silencer component--as the manufacturer refers to the Maxim 50 as an integrally suppressed muzzleloader--the Maxim 50 does fall under NY CLS Penal § 265.00(2).The drafters of ‘firearm silencer’ clearly and poignantly intended to make firearm silencers unlawful in New York. Case law makes this point clearer still. The Opinion of the Appellate Court of Albany is insightful and is quoted at length in the 1984 New York case, Oefinger vs. New York State Police, 146 A.D.2d 186, 540 N.Y.S.2d 360, 1989 N.Y. App. Div. LEXIS 4881.In Oefinger vs. New York State Police, 146 A.D.2d 186, 540 N.Y.S.2d 360, 1989 N.Y. App. Div. LEXIS 4881, “The Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms denied the gunsmith's request for permission to transfer two machine guns and a firearm silencer to persons who could lawfully possess them in New York. The gunsmith, who was also a dealer, filed an action for a declaratory judgment. The trial court granted the state police's motion for summary judgment and dismissed the complaint. The court modified the trial court's judgment so as to allow a declaratory judgment because such was designed to allow the adjudication of rights before a wrong took place. Thus, the gunsmith did not need to be in danger of prosecution before a declaratory judgment as to his rights could be entered. The court then declared that the gunsmith could not lawfully possess or dispose of firearm silencers and machine guns.  N.Y. Penal Law § 265.00(8), (9) defined a ‘gunsmith’ and a ‘dealer in firearms’ and prescribed the activities in which persons who were duly licensed for those businesses could lawfully engage. Because possession and disposition of a silencer or machine gun were not mentioned in N.Y. Penal Law §§ 265.00(8), (9), 265.02(2), 265.10(3), they were not permissible.”The Appellate Court of Albany said this about the possession of silencers by either a New York licensed dealer or gunsmith: "Penal Law § 265.00 (8) defines a ‘gunsmith’ and Penal Law § 265.00 (9) defines a ‘dealer in firearms.’ “These definitions specifically prescribe the activities in which those persons or entities who are duly licensed for those businesses under Penal Law § 265.20 (a) (10) can lawfully engage.  Applying the rule of statutory construction that states expressio unius est exclusio alterius, 'an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded' (Patrolmen's Benevolent Assn. v City of New York, 41 NY2d 205, 208-209, quoting McKinney's Cons Laws of NY, Book 1, Statutes § 240).  It follows that inasmuch as subdivisions (8) and (9) of Penal Law § 265.00 contain no reference to firearm silencer possession and disposition by a ‘gunsmith’ or a ‘dealer in firearms,’ such possession and disposition are not permissible (Penal Law § 265.02 [2]; § 265.10 [3]).  We find no merit in plaintiff's contention that Penal Law § 265.20 (a) (10) provides an exemption for gunsmiths and dealers in firearms from all of the penalties provided by Penal Law article 265. The exemption provided by Penal Law § 265.20 (a) (10) permits gunsmiths and dealers in firearms to engage only in the activities prescribed in the definitions of those terms in Penal Law § 265.00 (8) and (9), for without such exemption the prescribed activities would be  unlawful. Contrary to plaintiff's claim, however, the exemption cannot be construed to broaden and expand the statutory activities in which a gunsmith or dealer in firearms can lawfully engage.”“By similar reasoning and applying the same statutory rule of construction, a ‘dealer in firearms’ is not authorized to possess or in any other way deal in ‘machine guns’ (Penal Law § 265.02 [2]; § 265.10 [3]).  The definition of ‘firearm’ contained in Penal Law § 265.00 (3) does not include ‘machine guns,’ which are separately defined in Penal Law § 265.00 (1).  Again, contrary to plaintiff's contention, no exemption is provided in Penal Law § 265.20 (a) (10) for a licensed dealer in firearms to possess or dispose of machine guns to any individual who may lawfully possess them.  The activities of licensed dealers in firearms are limited to pistols or revolvers (Penal Law § 265.00 [9]).  As to licensed gunsmiths, the activities permitted by Penal Law § 265.20 (a) (8) in respect to machine guns applies only if they are the [manufacturers]’ of machine guns. Since plaintiff is not such a ‘manufacturer’ of machine guns, the statute has no application to him. Pursuant to Penal Law § 265.00 (8), a licensed gunsmith may engage in certain activities with respect to machine guns, but disposition is not one of those activities.  Plaintiff's other contentions have been considered and found to be without merit.”Under New York law, as interpreted by the Appellate Court of Albany, licensed dealers and gunsmiths are not permitted to transfer machine guns or silencers. Whether the integrally suppressed muzzleloader (silencer) of the Maxim 50 is integrated into a device that is not construed as a firearm under federal law or New York law is, then, decidedly and decisively legally irrelevant.The Maxim 50 is a “gun” under New York law, and since the suppressor (silencer) is integrated into that gun, it is the Arbalest Quarrel’s educated opinion (albeit, not a formal legal opinion), that the Maxim 50 is illegal in New York.FURTHER NOTE:The Arbalest Quarrel has spoken with one licensed gun dealer in New York, and holder of an FFL, who told us that, under no circumstances, would he accept delivery of the Maxim 50 for anyone. And, it is doubtful that a New York resident, not under disability, would be able to locate any conscientious licensed New York gun dealer or gunsmith who would be willing to accept delivery of the Maxim 50 on behalf of a customer, for transfer to that customer. It should go without saying, then, that, under no circumstance should a resident of New York attempt to obtain delivery of the Maxim 50 directly from the manufacturer; for, to do so would be to invite serious criminal repercussions under New York State law. Such attempt to obtain possession of the Maxim 50 in New York would invite unwelcome attention from the BATF as well. Interested parties should peruse the National Firearms Handbook which can be found on the BATF website. Other web pages on the BATF website contain a wealth of information on firearms rules and regulations.To its credit SilenceCo does make clear that “customers from any state should verify they are abiding by all state, local, and federal laws before purchasing.”  Individuals interested in obtaining the Maxim 50 should takes those words to heart.BOTTOM LINE: The Arbalest Quarrel concludes that the Maxim 50, as with “Assault Weapons,” as the expression ‘Assault Weapon’ is defined in the Consolidated Laws of New York, is illegal in New York. Therefore, no New York resident should attempt to obtain one.Whether the Maxim 50 is "legal" in other States requires a separate analysis of each State's own peculiar firearms' laws. The Arbalest Quarrel will analyze other State laws to ascertain whether the Maxim 50 is legal in those States, upon specific request of readers._________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

CONGRESSMAN CHRIS COLLINS’ SECOND AMENDMENT GUARANTEE ACT (“SAGA”): A GOOD START BUT NOT A FINISHED PRODUCT

THE SECOND AMENDMENT GUARANTEE ACT

INTRODUCTION

The seminal Second Amendment Heller case (District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008)) made categorically clear and unequivocal that the right of the people to keep and bear arms is an individual right unconnected with one’s service in a militia; and the seminal Second Amendment McDonald case (McDonald v. Chicago, 561 U. S. 742, 780, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010)) that followed Heller, two years later, made clear that the right of the people to keep and bear arms—an individual right—applies to the States as well as to the federal Government. Unfortunately, many State Legislatures, along with many legislators in Congress and, worst of all, many jurists on State or Federal Courts strongly oppose the holdings and reasoning of the Majority in Heller and McDonald. This animosity carries over to and is reflected in poorly drafted legislation and in poorly crafted legal opinions. Occasionally, though, State Legislatures and Congress get it right, and do draft laws recognizing the fundamental right of the people to keep and bear arms. Congressman Chris Collins’ (NY-27) Second Amendment Guarantee Act (“SAGA”) that the Congressman recently introduced in Congress is just such a bill. We heartily support the Congressman’s efforts. But, what might we expect?

WHAT IS THE POSSIBILITY OF PASSAGE OF THE SECOND AMENDMENT GUARANTEE ACT?

Unfortunately, not good. We take our cue from other pro-Second Amendment bills. We have yet to see movement on several national handgun carry reciprocity bills that presently exist in a state of limbo, locked up in Committee.  Even if Congressman Collins’ bill makes it out of Committee, and, further, is voted on and passes a full House vote, it likely would be held up in the Senate where it must garner a super majority—60 votes—to pass and see enactment. The bill likely would not pass as a “stand-alone” bill in any event. That means the bill would have to be tacked on to other legislation to have any chance of passage. But, assuming the bill were enacted, what might we expect from it?

WHY DID CONGRESSMAN COLLINS DRAFT THE SECOND AMENDMENT GUARANTEE ACT AND WHAT IS THE PURPOSE OF THE BILL?

Congressman Collins, a Representative of New York, obviously had Governor Cuomo’s signature anti-Second Amendment legislation, the NY Safe Act, in mind, when he drafted this bill; for the bill, if enacted, is, ostensibly at least, at loggerheads with a key feature of the Safe Act—Section 37 of the Act—the Section that bans the possession and sale of all firearms defined as ‘assault weapons.’According to the Congressman’s Press Release “Congressman Chris Collins (NY-27) has proposed new measures for protecting Second Amendment rights by introducing legislation to limit states authority when it comes to regulating rifles and shotguns, commonly used by sportsmen and sportswomen. The Second Amendment Guarantee Act (SAGA) would prevent states from implementing any regulations on these weapons that are more restrictive than what is required by federal law. Upon passage of this bill, most of the language included in New York State’s Secure Ammunition and Firearms Enforcement (SAFE) Act of 2013 signed into law by Governor Cuomo would be void." But, is that true? Is the Press Release accurate? Or, does the Press Release presume more about the bill than what the bill produces, in the event the bill, as drafted, sees the light of day and becomes law?

WHAT DOES THE BILL SAY?

The bill (H.R. 3576), amends Section 927 (Effect on State Law) of Chapter 44 (Firearms), of Title 18 (Crimes and Criminal Procedure) of the U.S. Code.As presently enacted Section 927, says:“No provision of this chapter [18 USCS §§ 921 et seq.] shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.”Collins’ bill deletes the first word of Section 927—the word, “No,”—and replaces that word with the phrase, “Except as provided,” and, then adds language, establishing, inter alia, that States cannot enact laws pertaining to rifles and shotguns that are “more restrictive. . . with respect to such a rifle or shotgun.” In pertinent part, Congressman Collins’ modification of Section 927 of Title 18 sets forth:“A State or a political subdivision of a State may not impose any regulation, prohibition, or registration or licensing requirement with respect to the design, manufacture, importation, sale, transfer, possession, or marking of a rifle or shotgun that has moved in, or any such conduct that affects, interstate or foreign commerce, that is more restrictive, or impose any penalty, tax, fee, or charge with respect to such a rifle or shotgun or such conduct, in an amount greater, than is provided under Federal law. To the extent that a law of a State or political subdivision of a State, whether enacted before, on, or after the date of the enactment of this subsection, violates the preceding sentence, the law shall have no force or effect. For purposes of this subsection, the term ‘rifle or shotgun’ includes any part of a rifle or shotgun, any detachable magazine or ammunition feeding device, and any type of pistol grip or stock design.”What does the modification of Section 927 of Title 18 of the U.S. Code purport to do; and what does the modification of Section 927 of Title 18 of the U.S. Code mean?To understand the import of Congressman Collins’ bill, it is first helpful, in this instance, to understand what those who oppose it would do to challenge it, assuming the Second Amendment Guarantee Act does become law—which is far from clear given Democrats’ hysterical aversion to the Second Amendment and Republicans’ constant foot-dragging.

IF ANTIGUN GROUPS AND LEGISLATORS CHALLENGE THE BILL IN THE EVENT IT BECAME LAW, UNDER WHAT GROUND MIGHT THE BILL BE CHALLENGED?

Congressman Collins’ bill is likely to face stiff opposition and resistance in Congress prior to enactment—assuming it even moves out of Committee—as it would almost certainly be challenged, inter alia, on Constitutional, Tenth Amendment grounds were the bill to become law.What does the Tenth Amendment say? The Tenth Amendment to the U.S. Constitution says: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The Tenth Amendment has always been a sticky wicket, especially in matters involving the Second Amendment because the matter of firearms’ regulations and licensing, apart from the regulation and licensing of machine guns, short-barreled rifles and shotguns, and destructive devices, falls, traditionally, within the police powers of a State. Although the federal Government has, in the last several decades, amassed ever more powers unto itself, the fact of the matter is that this Nation is a confederation of independent sovereign States. This idea seems to be lost on people, not least of all in light of the present “Charlottesville” episode—a matter which the Arbalest Quarrel will be writing on in the near future, taking the mainstream news media to task for unleashing a wave of opinionated fake news on the matter, and which the mainstream media is egging the Trump Administration to handle, on the federal level, to support Marxist efforts to erase our Nation’s history, traditions, and core values.Yet, the federal Government cannot indiscriminately, lawfully, run roughshod over the States and the people. In the matter of Congressman Collins’ bill, the Second Amendment Guarantee Act, this creates something of a quandary; for, the bill—as the Congressman articulates through his Press Release—substantially preempts States’ rights on matters of firearms regulations and licensing. The paramount question is this: if Congressman Collins’ bill does become law, can those, who would then seek to mount a Tenth Amendment challenge against it, likely succeed in the Courts? The answer isn’t clear, but, a careful analysis of the bill’s text suggests the bill can survive a Tenth Amendment challenge, as it was carefully drafted to sidestep just such a challenge. Why do we say this? Well, looking at the Tenth Amendment issue, the actual drafter or drafters of the bill made clear the intent of the Act to supersede State regulation of and licensing of firearms; for, Congress would, under the Second Amendment Guarantee Act, be exercising its authority to regulate firearms moving in interstate commerce. It is a categorical, unequivocal principle of law that Congress has plenary power to regulate goods moving in interstate commerce under the Commerce clause. On that matter, no legitimate legal question exists, as the U.S. Supreme Court has made this point abundantly clear.“As we observed in Lopez, [United States v Lopez (1995) 514 U.S. 549, 131 L. Ed. 2d 626, 115 S. Ct. 1624] modern Commerce Clause jurisprudence has ‘identified three broad categories of activity that Congress may regulate under its commerce power.’ 514 U.S. at 558 (citing Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 276-277, 69 L. Ed. 2d 1, 101 S. Ct. 2352 (1981); Perez v. United States, 402 U.S. 146, 150, 28 L. Ed. 2d 686, 91 S. Ct. 1357 (1971)). ‘First, Congress may regulate the use of the channels of interstate commerce.’ 514 U.S. at 558 (citing Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256, 85 S. Ct. 348, 13 L. Ed. 2d 258 (1964); United States v. Darby, 312 U.S. 100, 114, 85 L. Ed. 609, 61 S. Ct. 451 (1941)). ‘Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.’ 514 U.S. at 558 (citing Shreveport Rate Cases, 234 U.S. 342 (1914); Southern R. Co. v. United States, 222 U.S. 20, 32 S. Ct. 2, 56 L. Ed. 72 (1911); Perez, supra, at 150). ‘Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, . . . i.e., those activities that substantially affect interstate commerce.’ 514 U.S. at 558-559 (citing Jones & Laughlin Steel, supra, at 37). United States v. Morrison, 529 U.S. 598, 609; 120 S Ct. 1740, 1749; 146 L. Ed. 2d 658, 670 (2000).”So, the Second Amendment Guarantee Act would likely survive a Tenth Amendment challenge. But, the strength of the bill, as drafted, also poses a weakness, notwithstanding. For, while State laws, such as New York’s SAFE Act and Maryland’s Firearm Safety Act, cannot, if Collins’ bill is enacted, most likely preclude importation of firearms into their State—including and importantly so-called assault weapons, as importation of such firearms affects interstate commerce and federal law, would, under the Second Amendment Guarantee Act, preempt State law in matters affecting interstate commerce—still, once the firearms are presented in States such as New York and Maryland, it isn’t clear, from the present language of the bill, that firearms’ dealers would be able to sell or trade such “assault weapons” to individuals residing in those States, so long as laws such as the SAFE Act and the Firearm Safety Act are in effect. And, those Acts would still be in effect. For, contrary to Collins’ Press Release, restrictive State gun laws, such as the NY Safe Act, do not, ipso facto, become nugatory. A legal challenge to the constitutionality of New York’s Safe Act and Maryland’s Firearm Safety Act would have to be made. But, once made, it is still unclear whether the Safe Act and the Firearm Safety Act could not prevent transfers of "assault weapons" to individuals, not under disability, within the State, on the ground that regulation of "assault weapons" was being conducted intrastate, thereby not affecting interstate commerce.The question, from the standpoint of those challenging restrictive gun legislation existent in States such as New York, Maryland, California, Hawaii, and others, then becomes whether so-called “assault weapons” that some States wish to ban and, at present, have banned outright, can be sold as “protected” firearms under federal law, once they are in a State, such as New York. If so, that means, then, that States could not legally proscribe the transfer, ownership, and possession of those weapons, try as they might. The issue raised by the Second Amendment Guarantee Act is analogous to the matter pertaining to machine guns, submachine guns, and selective fire weapons, as federal law completely preempts the field concerning those weapons, which means that States have absolutely no legal power to enact laws involving the regulation, licensing, and disposition of those kinds of weapons in their States. Federal law completely preempts the field in matters involving the licensing, regulation, and disposition of machine guns. Language in Section 922 (Unlawful Acts) of Title 18 of the U.S. Code makes clear the intent of Congress to preempt the field, in its entirety, in matters pertaining to the transfer and ownership and possession of machine guns. Paragraph “o” of Section 922 of Title 18 says,“(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.(2)  This subsection does not apply with respect to—(A)  a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or(B)  any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect [effective May 19, 1986].”Curiously, the expressions, ‘firearm,’ ‘rifle,’ ‘shotgun,’ and ‘machine gun,’ are not defined in Section 922 of Chapter 4 (Firearms) of Title 18 of the U.S. Code, where a person might expect to find them, but in Section 5845 of the Internal Revenue Service Code of the U.S. Code, 26 USCS § 5845. In 26 USCS § 5845(b), “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 machine gun, 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.”Keep in mind that Congressman Collins’ bill modifies Section 927 of Title 18 of the U.S. Code only, which deals with federal preemption of State law regulation of firearms,  generally, but the bill modifies nothing in Section 922 of Title 18, where one would expect to find an assertion of those particular firearms and firearms’ components that federal law is preempting States from regulating and there is no modification of Section 5845 of Title 26 (Internal Revenue Code) where firearm terminology is specifically defined. And, it is in Section 922 of Title 18 of the U.S. Code that we see federal preemption of regulation of machine guns; and it is in that same Section of Title 18 that, in 1994, Congress expressly banned ownership and possession of “assault weapons,” nationally—as part of antigun efforts that orchestrated enactment of the “Violent Crime Control and Law Enforcement Act of 1994.” A national ban on the transfer of and ownership of so-called “assault weapons,” along with a ban on LCMs, was set forth in federal law, subsumed in Section 922 of Title 18 of the U.S. Code. But inclusion of an “assault weapons” provision of Section 922 of Title 18 of the U.S. Code, which added a paragraph “v” which made it “unlawful for a person to manufacture, transfer, or possess a semiautomatic assault weapon,” and inclusion of a ban on large capacity magazines, set forth in paragraph “w” of Section 922 of Title 18 of the U.S. Code, which made it “unlawful for a person to transfer or possess a large capacity ammunition feeding device,” both expired in September of 2003. Those provisions of Section 922 of Title 18 of the U.S. Code were never reauthorized, despite subsequent and numerous efforts by antigun politicians to do so.Since the impetus for the Second Amendment Guarantee Act was predicated, obviously and reasonably, on Congressman Collins' laudable desire to negate the impact of the NY Safe Act on the federal level, through the federal preemption—since Albany appears either unwilling or incapable of repealing the NY Safe Act on the State level itself—we can infer that the Second Amendment Guarantee Act was designed principally to preclude States, such as New York, from banning substantial numbers of semiautomatic firearms that’s State antigun legislators, with great fanfare, cast into the category of “assault weapons.”Congressman Collins, a staunch proponent of the Second Amendment, clearly seeks, through enactment of his bill, to provide Americans the converse—the flipside—of efforts to curb exercise of the right of the people to keep and bear arms. The Second Amendment Guarantee Act, as some would argue, proscribes States from regulating all categories of rifle and shotgun, thereby curbing, with one fell swoop, attempts by any State Legislature to impose specific restrictions on the ownership and possession of one large category of firearms, those subsumed under the nomenclature “assault weapons,” and curbing, as well, attempts by any State Legislature to impose size restrictions on ammunition magazines.But, does Congressman Collins’ bill, that modifies Section 927 of Title 18 of the U.S. Code, make federal preemption of regulation of assault weapons and other firearms’ components absolutely clear?Once again, as presently enacted Section 927 says:“No provision of this chapter [18 USCS §§ 921 et seq.] shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.”Collins’ bill deletes the first word of Section 927—the word, “No,”—and replaces that word with the phrase, “Except as provided,” and, then adds language, establishing, inter alia, that States cannot enact laws pertaining to rifles and shotguns that are “more restrictive. . . with respect to such a rifle or shotgun.” But, and this is an important, but, is such language enough to negate restrictive State firearms’ legislation such as the NY Safe Act? We don’t think so—thus, the failings of the bill, in its current form. For, what do the words, ‘more restrictive with respect to such a rifle or shotgun,’ mean, here?The reader must understand that federal law preemption of firearms, Sections 921, et. seq., of Title 18 of the U.S. Code, is directed essentially to a specific class of firearms, namely machine guns. As made clear in paragraph "o" of Section 922 of Title 18 of the U.S. Code, Federal law preempts the field as to those kinds of firearms only, and the language of the law makes federal preemption in matters involving the regulation of machine guns patently clear. Congressman Collins’ bill is silent on the subject of so-called “assault weapons”—which some believe Congressman Collins’ bill, if enacted, would adequately address, and which it must address if it were to do what it purports to do: preclude States from prohibiting the transfer and possession of firearms that New York’s Safe Act and Maryland’s Firearm Safety Act prohibit, expressly, and prohibit outright--"assault weapons."Had Congressman Collins’ bill been more explicit and precise, we believe that language should appear in Section 922 of Title 18 of the U.S. Code that would work in tandem with the language appearing in Section 927 of Title 18 of the U.S. Code. And, in Section 5845 of Title 26, we would like to see language that clearly and specifically defines the expression 'semiautomatic weapons.' And, in Section 922 of Title 18, we would like to see language that sets forth the lawful transfer of all semiautomatic weapons to individuals, not under disability. The federal preemption Statute, namely, Section 927 of Title 18, as modified in the Second Amendment Guarantee Act would then make federal preemption of the entire field of semiautomatic firearms abundantly and categorically clear. Ideally, language modifying Section 5845 of Title 26, and modifying Sections 922 and 927 of Title 18 of the U.S. Code would establish federal preemption of the entire field of firearms but--and this next point is critical--only to the extent that such modifications serve to enhance the citizen’s right to keep and bear arms under the Second Amendment. We have no desire to see federal preemption leading to mass registration of firearms and draconian licensing measures on the federal level that we already see much too often on the State level.Ideally, language in the Congressman’s bill would have set forth, in Section 922 of Title 18 of the U.S. Code explicit protection of all commercial transactions, among all the people, who are not under disability (as categories of disability are set forth with particularity in paragraph “g” of Section 922 of Title 18), involving all firearms—rifles, shotguns and pistols, whatever the configuration or mode of operation of those rifles, shotguns, and pistols; and, further, Collins’ bill should have included language doing away with BATFE licensing of such firearms as well, which, in the case of machine guns, involves a lengthy, time-consuming, expensive and mentally exhaustive process that does nothing to enshrine the Second Amendment right of the people to keep and bear arms, as exercise of that fundamental right is unduly hampered by a multitude of administrative obstacles. Lastly, we would like to see firearms’ licensing at both the State and Federal levels ended. As a parenthetical note, we point out that Congressman Collins’ bill is altogether silent on the matter of handguns which means that, under his bill, handguns would not be subject to federal preemption. States would still be able to impose draconian restrictions on the American citizenry in matters involving handguns. But, why should Americans suffer the indignity of exhaustive, extensive, and expensive firearms’ regulatory hurdles at all?One doesn’t need a license to freely exercise one’s right of free speech—at least at the moment—although leftwing groups—most notoriously, the so-called “ANTIFA,” an anarchist/communist, domestic terrorist group (as much as any other terrorist group that this Country formally recognizes), is doing its best to constrain the right of free expression in this Country. Why must one secure a license to exercise a fundamental natural right of self-defense, as firearms are the best means available to secure one's safety and well-being when threatened and access to firearms, for those not under disability (as set forth in paragraph "g" of Section 922 of Title 18 of the U.S. Code), is guaranteed under the Second Amendment!Congressman Collins’ modification of Section 927 of Title 18 of the U.S. Code, alone, does not, we believe, adequately establish federal preemption of firearms’ regulation because the purpose of Section 927 is simply designed to preclude conflict between State and Federal firearms laws. That is the Section’s only purpose. Its purpose is not to define the kinds of firearms that fall under the auspices of federal preemption—which is addressed, and is meant to be addressed in Section 5845 of Title 26 of the U.S. Code (referred to more specifically as the Internal Revenue Code of the U.S. Code) and does not set forth the manner in which federal preemption of firearms is specifically addressed, as is the case with machine guns, as set forth in paragraph "o" of Section 922 of Title 18 of the U.S. Code. We also note that the Congressman’s bill, as drafted, uses the permissive ‘may,’ rather than the obligatory ‘shall’ suggesting, then, that States might still regulate firearms, transecting, then, federal preemption, rather than being totally eclipsed by it. Furthermore, as drafted, Congressman Collins’ bill does not adequately establish the kinds of firearms that he intends federal law to preempt. The draft language of the bill simply sets forth that State law “may not” enact a law “that is more restrictive, or impose any penalty, tax, fee, or charge with respect to such a rifle or shotgun or such conduct, in an amount greater, than is provided under Federal law.” But, federal law, Sections 921 et. seq., direct attention to machine guns. Federal law does not address so-called “assault weapons”—semiautomatic weapons and, in New York, revolving cylinder shotguns (which are also defined as 'assault weapons'). Consider: had federal law still imposed federal licensing requirements on “assault weapons,” as it once had, in 1994, then New York’s SAFE Act and Maryland’s Firearm Safety Act, regulating such weapons, likely would have been struck down as unlawful under Section 927 because Federal law had, at that time, in effect, at least, preempted the field as to the regulation of assault weapons and large capacity magazines. What this means is that such restrictive State gun laws, regulating or proscribing ownership and possession of “assault weapons,” at that time, would either have been redundant, if otherwise consistent with federal law, or unlawful, if inconsistent with federal law.

CONCLUSION

The bottom line: In its present form, Congressman Collins’ Second Amendment Guarantee Act (“SAGA”), is a good start toward giving the Second Amendment full effect, as the framers of our Bill of Rights intended. And the Congressman is to be commended for his effort. But the bill, as drafted, leaves, we feel, too much uncertainty, in its present form, to be effective in defeating restrictive, draconian State gun measures like the New York’s Safe Act and Maryland’s Firearm Safety Act, contrary to the opinions of some. More work on the bill is needed. But, such work would, we feel, certainly be a worthwhile endeavor._________________________________________________________________Copyright © 2017 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.