Monday, September 24, 2012

EDITOR'S NOTE: This is an update of a post I did about four years ago.

About this time of year many Iowans get the urge to head out to the field and do a little hunting and one of the things that happens is that there's a fresh crop of felon in possession charges that come across the county attorney's desk. Often the offenders are people who may have had a third operating while intoxicated conviction a few years ago, and memory has faded. I had more than a few at the county attorney's office myself. There are also a number of people who have had convictions for domestic violence or who are subject to protective orders who ask the same things.

One question that always gets asked is "Well, can I hunt with an antique weapon like a muzzle loading rifle or shotgun?" The answer is decidedly "no", even though some folks may argue that federal law doesn't forbid it. 

Our state has not specifically defined a "firearm" in the code-such things are subsumed in the definition of a dangerous weapon found in Iowa Code Chapter 702, which specifically exempts a bow and arrow possessed for hunting and other lawful purposes. In State v. Lawr, 263 N.W.2d 747 (Iowa 1978) the Court did say that a firearm is a small arms weapon from which a projectile is fired by gunpowder. It must be able to propel a projectile and it must do so by explosive force.

The last time I did this piece a fellow took issue with me, saying that black powder and pyrodex are not gunpowder and therefore a muzzle loader is not a dangerous weapon subject to regulation. I would like to see that fellow try to sell that to the veterans of the Civil War, but nevermind.

There's a recent case from Nevada that applies. In State v. Pohlabel, a defendant argued that the state's statute prohibiting felons from possessing firearms violated his second amendment right to keep and bear arms. Pohlabel's argument was that 18 U.S.C 921(a)(3) does not forbid felons from possessing antique or black powder firearms:

(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. 
Further we find this:
(16) 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. 
Next, to further confuse the issue is 26 U.S.C. 5845 a/k/a the National Firearms Act:
(a) Firearm
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.
Of course the NFA serves only to regulate weapons, rather than regulating who has command and control over the weapons as 18 U.S.C. 921 does. 
I tend to disagree with such a liberal interpretation of the definition in 18 U.S.C. 921(a)(3)  myself because I think that the exception, if there is one, means only that an antique firearm is not considered a destructive device. But nevermind.
The Court disagreed with Pohlabel's argument, saying that while federal law currently permits felons to possess black powder rifles, that does not mandate that Nevada (should) follow suit.

At this point, the answer's clear. If you're a felon in Iowa you might want to consider taking up archery, and the same applies if you've been convicted of a domestic violence offense or are subject to a protective order in a domestic violence case, no matter how minor.


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