Guns

More on Guns and Strict Liability

An interesting opinion from an Illinois appellate judge, arguing against the Illinois rule under which it's a crime to possess a gun with a defaced serial number even if one has no reason to know that it's defaced.

|The Volokh Conspiracy |

From Illinois Appellate Court Judge David Ellis's concurring opinion two weeks ago in People v. Lee:

I believe that the State is required to prove that the defendant [who is charged with possessing a firearm with a defaced serial number] knew that the firearm he possessed [had a defaced serial number]. The seminal case holding otherwise, People v. Stanley, 397 Ill. App. 3d 598 (2009), was wrong when it was decided and is even more obviously wrong today, in a world where the mere possession of a firearm, without more, cannot be constitutionally prohibited. We should say so.

Section 24-5(b) of the Criminal Code provides that "A person who possesses any firearm upon which any … serial number has been changed, altered, removed, or obliterated commits a Class 3 felony." As written, the statute thus takes the form of a "strict" or "absolute" liability offense: It has no explicit mens rea requirement.

The legislature can create absolute liability for a felony, but only if it "clearly indicates" its intent to do so. 720 ILCS 5/4-9. That intent will not be inferred from the "mere absence" of a mens rea requirement in the statute. People v. Gean, 143 Ill. 2d 281 (1991). As Stanley correctly noted, there is no clear statement of that intent in section 24-5(b). Thus, we must presume that the legislature did not intend to impose absolute liability for possessing a defaced firearm.

To avoid absolute liability, a mens rea must be inferred into the statute. For a possessory offense, we must infer at least a mental state of knowledge. 720 ILCS 5/4-2 (possession must be knowing to qualify as voluntary act, as required for criminal liability); see also Gean, 143 Ill. 2d at 288 ("knowledge is the appropriate mental element" to infer into possessory offense). The question is which element(s) of the statute the knowledge requirement must govern. I would hold that the offense requires proof that defendant knew the firearm in his possession was defaced….

Stanley was wrongly decided for at least two reasons. First, its reasoning was indefensible. It held that knowledge of the defacement is not required because defacement "is not an element of the offense" in the first place. So if defacement is not an element, there is only one place to infer the knowledge requirement: with respect to the mere act of possessing a firearm.

But of course, the defacement is an element of the offense. In the parlance of the Criminal Code, it is an "attendant circumstance" of an individual's conduct. If the defacement were not an element, the State wouldn't have to prove it at all. It could prove possession of a defaced firearm simply by proving possession of any firearm, defaced or not. That would be absurd. And we cannot avoid that absurdity by purporting to distinguish, as Stanley did, between an element and a fact that "unmistakably bears upon the commission of the offense." It "unmistakably bears upon" the crime, but it's not an element—it's not something the State has to prove? It's just an interesting detail? That phrase is just a muddled, evasive way to refer to an element of the offense, which, in plainer terms, is simply a fact for which the statute requires proof beyond a reasonable doubt.

Second, as Stanley construed the defacement statute, it still imposes absolute liability, even though that is precisely the result that Stanley (correctly) set out to avoid.

As written, the defacement statute has two elements: possession and defacement of a firearm. Possession of a firearm, by itself, is not a crime. Nor is knowing possession of a firearm. Indeed, any statute that criminalized the knowing possession of a firearm—full stop, without more—would clearly violate the Second Amendment, as interpreted in McDonald v. City of Chicago and District of Columbia v. Heller.

To define a constitutionally permissible offense, another element is necessary—some fact about the firearm or the circumstances of its possession that the Second Amendment does not protect. Defacement is one example of such an additional fact. Thus, in the statute we are considering, the defacement is more than just an element, on par with any other; it is the element that allows the legislature to enact this offense in the first place without being blatantly unconstitutional. The additional fact of defacement is the only thing in this statute that validly makes the firearm possession a crime.

Which means that, to avoid imposing absolute liability, the statute must be construed to require proof that the defendant knew the firearm was defaced. If the statute did not require knowledge of the defacement, the defendant's otherwise innocent conduct (knowingly possessing a firearm) would be transformed into a felony by a circumstance (the defacement) of which he was unaware. And if a person can be made to wander into felony liability unwittingly, just by engaging in otherwise innocent conduct, then the felony liability imposed by the statute is "absolute" or "strict," indeed.

That is the lesson of Gean. There, the supreme court construed a "chop shop" statute aimed at prohibiting the receipt of stolen vehicles. In technical terms, at issue were two different Class 4 felony provisions: (1) prohibiting the possession "without authority" of certain vehicle items (such as certificates of title or salvage certificates) and (2) prohibiting the possession of these same items "without complete assignment."

Like the defacement statute, the provisions at issue in Gean did not include any explicit mens rea requirement. Because the legislature did not clearly express an intent to create absolute liability for this felony possession offense, a mens rea of knowledge had to be inferred. The question was which elements required such knowledge—did the defendant merely have to know he was possessing the vehicle title or similar item, or did the state have to prove that the defendant knew that his possession of the item was "without authority" (in the one subsection) or that the items he possessed were "without complete assignment" (in the other subsection)?

The supreme court inferred a knowledge requirement into the latter elements of each subsection; the state had to prove that the defendant knew that his possession of the certificate was "without authority" as for the first subsection, and that the defendant knew that the certificates he possessed were "without complete assignment" in the second.

Why? Because, as the supreme court explained, "[k]knowledge generally refers to an awareness of the existence of facts which make an individual's conduct unlawful." (Emphasis added.) Id. Possessing a car title, alone, is not unlawful; if it were, every car owner in Illinois would be a criminal. It was the knowledge that the car was stolen—that the defendant knew his possession of the certificate or other item was "without authority," or that he knew the item had not been validly "assigned"—that differentiated innocent conduct from criminal conduct.

The same holds true here. We have perfectly innocent conduct (possession of a firearm, without more) combined with an attendant circumstance that transforms that conduct from legal to illegal—the fact that the firearm is defaced. If we don't infer a knowledge requirement into the part of the statute that renders the actor a criminal, we are imposing absolute liability for a Class 3 felony, without the requisite clear indication that the legislature attempted to do so.

To put this point in its proper context, contrast the defacement statute with the aggravated vehicular hijacking statute, cited here by the State. A person commits vehicular hijacking if he knowingly takes a motor vehicle by force or threat of force. A person commits aggravated vehicular hijacking if he commits vehicular hijacking under section 18-3(a) and an aggravating factor is present—for example, a victim is under 16 years old, over 60, or physically disabled.

The statute does not require knowledge that an aggravating factor is present; there is no explicit mens rea requirement with respect to the circumstances that aggravate the offense. And we have refused to infer one.

But that's different. The aggravated vehicular hijacking statute does not transform legal conduct into illegal conduct without the actor's knowledge. The actor has already committed vehicular hijacking—that is, he has already knowingly taken a car by force or threat. The aggravated vehicular hijacking statute just aggravates the offense based on the character of the victim. The legislature could rationally decide that a carjacker takes his victims as he finds them, regardless of whether he knew they were minors, elders, or disabled. No absolute liability there, however, because the knowledge requirement applies to the action that makes it criminal—the theft of the car in the first place.

Taking your carjacking victims as you find them is very different than taking your firearms as you find them. The law made the vehicular hijacker take his chances with his victims, but only because he knowingly committed a criminal act in the first place. The law did not make him wander inadvertently into a felony—due to circumstances beyond his knowledge—while he was doing something that was otherwise legal. But that is exactly what the law does to those who possess firearms, at least as Stanleyconstrued the defacement statute. And Gean tells us that result is wrong.

To be fair, Stanley was decided before McDonald incorporated the rule of Heller against the states. So perhaps it was not so easy to say, at the time Stanley was decided, that knowingly possessing a firearm, full stop, is not and cannot be a crime under Illinois law. But that is no reason for us to continue to follow Stanley. At a minimum, it cannot be good law in a post-Heller world. If Gean wasn't the controlling precedent on this question before Heller and McDonald, it most certainly is now.

We should apply the principles of Gean to the defacement statute and hold, for the reasons explained by our supreme court, that it requires proof that the defendant knew the firearm in his possession was defaced. We should stop following Stanley, no matter how many other courts have adhered to it.

Sounds right to me, though I generally oppose strict liability in criminal statutes. For the U.S. Supreme Court's (complicated) approach to the matter, see Staples v. U.S. (1994); that case read the federal law banning unlicensed possession of guns capable of automatic fire as requiring proof that the defendant knew the gun was so capable, but other Supreme Court weapons cases have reached other results, as the Staples opinion notes.

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76 responses to “More on Guns and Strict Liability

  1. 2nd Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    More wasted taxpayer money deciding constitutional law that has already been decided by the Bill of Rights and has never been amended in the Constitution.

    All gun control is unconstitutional violation of the People’s right to keep and bear Arms.

    These judges should be impeached by violating their oaths of office to uphold the Constitution.

    1. US Constitution, Article 1, Section 8: To establish an uniform Rule of Naturalization…

      14th Amendment, Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

      9th Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

      10th Amendment: 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.

      For someone who likes to quote absolute phrases (“shall not be infringed”) as gospel, you do a remarkably poor job of justifying immigration control. How about showing where the federal government gets its authority to control immigration?

      1. Under common usage of the word, both now and certainly at ratification, commerce included immigration.

        1. [citation needed] unless you are referring to commerce in slaves.

      2. Uniform rule not no rule.

        Jurisdiction of: not diplomats, native Americans (at the time), etc.

        9th is constrained by the first clause you cited.

        Same with 10th. Care to try again?

      3. Uniform rule not no rule.

        Jurisdiction of: not diplomats, native Americans (at the time), etc.

        9th is constrained by the first clause you cited.

        Same with 10th. Care to try again?

      4. Alphabet troll is here?

        Article I, section 9, Clause 1. As of 1808, congress has the power to regulate migrants.

        1. I have never seen that used in any context but slavery. The clause is “The migration or importation of such persons …” and I have always understood that as a euphemism for slavery, same as with the 3/5 clause.

          The Constitution isn’t at all shy about naturalization or declaring war; why would it resort to beating around the bush for immigration? Slavery is the only subject it is afraid to discuss directly.

          Slavery was a huge bone of contention, and that is why the framers kicked the can down the road for 20 years. Immigration was not contentious, but naturalization was, and they didn’t kick that down the road.

          I’d really like to see some citations there, but we all know how you are with citations.

          loveconstitution1789|12.3.18 @ 10:20AM|#

          Do you need me to link the rules of NAFTA and USCMA so you can compare and contrast the “worseness” for us?

          1. “The clause is “The migration or importation of such persons …” and I have always understood that as a euphemism for slavery”

            Then you have always misunderstood that. Certainly “importation of such persons” is a euphemism for slavery, but “migration of such persons” can not be rationally read that way.

            Slaves are imported and exported and moved about in the stream of commerce the same as any other physical good, they do not (can not) migrate of their own will.

        2. Poor alphabet troll.

          He thinks Lefty professors of law know everything about the law, the Constitution, and actually want the Constitution followed.

          Any ‘scholar’ who avoided using A1S9C1 as an enumerated power for Congress to regulate immigration is simply lying.

          Luckily, the US Constitution is very simple in its language, meaning, and authority.

      5. Naturalisation includes immigration as necessary for the process to begin. Thus the Congress HAVE indeed been granted authority within the original Constitution to include immigration as a part of the “uniform rule on naturalisation”. Gotta GIT here first before you can become a citizen, right? And establishing a “trial period” mutually useful to both parties (tne immigrant and the Union as a whole.. don’t want any dirtbags invading and becoming citizens right away, now, do we? Oh wait, that’s PRECISELY what the open border turncoats are after, idnit?

        And back about 1995, the CONGRESS established it as the duty of the President of the United States to determine WHO may enter this nation and on WHAT terms. And building a wall to keep those not authorised OUT would be a necessary part of determing who DOES, and DOES NOT, come in, and HOW.

        (hint: through the established and manned border checkpoints…..)

  2. Setting aside the argument that any regulation is unconstitutional, this ruling makes perfect sense. How can you be held liable for something you had no way to know had happened? If you picked up a firearm somewhere (let’s assume legally,whatever that means) and the first digit of the serial number had been erased, would you have any way to know? If you were to purchase a rifle that had been modified (which can be done inadvertently by someone doing inexperienced “gunsmithing”) to fire fully automatically but had never taken it to the range, would you have any way to know that it had been modified? Should you then be liable in either of those situations? Common sense would suggest “no”.

    1. “How can you be held liable for something you had no way to know had happened?”

      Which is why strict liability properly has (with exceedingly rare exceptions) no place in criminal law.

      1. even though strict liability WAS clearly spelt out in the laws/rules regarding the use of ONLY secure government owned/managed/operated computer systems for conducting government communication, thye let the Clinnton She Unit slide because “she didn’t know……..” the use of her home server for everything ws strictly illegal. Well, eedjits, before she began to function as our Secretary of State, she underwent a month of training and instruction, going over ALL the rules under which she MUST function, and those rules included the specifications for communication… yet SHE was given a skate on the flimsy excuse “she did not know…….” despite the FACT she WAS carefully and fully informed.

        This guy, and another recent case where a guy was found in possession of an alledgedly fully automatic rifle and so charged as he’d not bought the Mother May I Card to have one…. but was able to establish that he had never fired the weapon and had no idea it was fully automatic…. it helped that some firearms expert testified that HE could not get it to fire in full auto mode….. there was NO proof given to establish that this guy with the “defaced” gun had any knowledge of that condition, either.

  3. I read the decision, expecting to find a situation where the altered serial number wasn’t obvious: part of the number had been machined away when a surplus rifle was sporterized, or someone had neatly added a digit to conceal that the gun was stolen, etc, etc. I’d have a lot of sympathy for someone who might not have reasonably known the serial number was hinky.

    In this case, though, it sounds like the alteration/obliteration was pretty obvious[1]. Is the notion that the state must prove the defendant knew the serial number was gone, even if it is blatantly obvious with the most casual handling? That would seem to eliminate all cases where the defendant doesn’t confess.

    [1]or not: “On cross-examination, Officer Serio testified that he did not know what caused the abrasions on the serial number or how long those abrasions had been there.” But for the sake of discussion I’ll assume it was perfectly obvious.

    p.s. What is it with defacing serial numbers, anyway? The only advantage I can see is to cover up that it’s a stolen gun, but the ways they are defaced usually don’t prevent forensic recovery of the original number. It makes it obvious the gun is stolen, and undermines the ‘I bought it from a guy and had no idea it was stolen’ defense.

    1. Is the notion that the state must prove the defendant knew the serial number was gone, even if it is blatantly obvious with the most casual handling?

      Sure, but I don’t think anyone thinks that knowledge has to be established directly. If something is so obvious that any reasonable person would know it, that’s circumstantial evidence that the defendant also knew it.

    2. Why would you assume that everyone who picks up a gun just automatically goes looking for the serial number? I owned a 12 guage shotgun for nearly 20 years, used it to hunt pheasant, quail, ducks and occasionally skeet, and the first time I ever consciously went looking for the serial number was when I went to sell the gun. I doubt very much that I am a unique or even unusual case. Yes, when I went to buy a new 9 mm handgun, I looked for the serial number to complete the warranty registration, but if I had purchased that gun used from a friend or relative, I doubt I would have had any reason to go looking for it. So, no, I would not find it surprising or even odd if a person claimed no knowledge that a gun’s serial number had been defaced.

      1. “Why would you assume that everyone who picks up a gun just automatically goes looking for the serial number?”

        Well, I wouldn’t 🙂

        I’m thinking of the case where the serial number is in an obvious location, and has obviously been removed with an angle grinder or whatever. Which is the prosecution’s theory for the case at hand (not an angle grinder, but an obviously defaced serial number).

        (FWIW, most people I know write down the serial numbers; it would be a bummer to have one stolen in a burglary and have the burglar get away with pawning it because you didn’t know the serial number. YMMV.)

    3. I think the theory is that people without criminal records would be buying guns, and selling them to criminals in the black market, and deface the serial numbers so that the sale could not subsequently be traced back to them. IOW, it’s defaced to defend the seller, not the buyer.

      1. Thanks, that makes sense. Still kinda dumb, given forensics, but if they were smart…

    4. Absaroka: “p.s. What is it with defacing serial numbers, anyway? ”

      While it basically yells “stolen!” it can hide who it was stolen from, which also masks when it was stolen, the locale, etc. These are things the buyer or modifier might want to hide from the authorities.

    5. If it is “obvious” that the serial number has been defaced, that ought to make it easier for the government to make its case that the defendant had knowledge. So, we are causing as much challenge for the government in that case.

      You seem to be going in the opposite direction. Since it is “obvious” the government shouldn’t have to prove it at all. Which is perverse. The government has the burden of proof to prove the defendant committed the crime beyond a reasonable doubt. I am not seeing why we should eliminate the requirement of proof for “obvious” cases.

      Also, to whom is it “obvious” that the serial number was defaced? To the defendant? Well, why shouldn’t the government have to prove beyond a reasonable doubt that it was obvious to the defendant such that the defendant knew the gun was defaced? You seem to want to assume obviousness. I say, make the government prove it. And if it really is obvious, that will not be a difficult task.

  4. This may be a little off-topic, but the subject reminds me of another question that comes up from time to time.

    Is there any consensus (and I realize there might be hundreds of different answers) on whether merely covering a serial number with electric tape, for example, is treated as “changed, altered, removed, or obliterated?”

    The purpose of this is of course to prevent a law-enforcement officer from observing the number “in plain sight” and entering your gun into the criminal search database when there is no legal reason for them to do so, other than they have “temporarily” taken possession of the gun for “officer safety” during an unrelated encounter. The theory being that in order to legally remove the tape, observe, and then run the serial number, the officer would need a search warrant.

  5. Just a comment.

    Some guns made prior to 1968 didn’t have serial numbers as it wasn’t required.

    1. According to federal law, serial numbers still aren’t required if you make the firearm yourself (I.e. 80% lowers or AK-from-a-shovel). You can sell this firearm later (assuming you didn’t make it originally with intent to sell) without a serial number or will it to a descendent and it’s perfectly legal. If you live in a slave state your local laws may not allow you this freedom.
      If you are a licensed manufacturer, you need a serial number on all guns you manufacture or sell. It’s illegal to deface that federally-required SN.
      This case is about possessing a firearm with a defaced SN, not about possessing a gun that originally had no SN.

      1. Yes, but there do still seem to be reasons under federal law to affix a serial number to firearms you are yourself, and some states have stricter requirements. The thing that got me started down this road was a friend sending me an article about a guy in MT (which is my legal residence) being charged with, among other things, possessing firearms without serial numbers. I haven’t found anything in the MT statutes requiring a serial number for firearms that you make yourself, but do need to nail this down.

        1. Was it federal or state charges? Any chance they were NFA items? Under federal law, those are required to have a serial.

  6. “Is the notion that the state must prove the defendant knew the serial number was gone, even if it is blatantly obvious with the most casual handling?”

    I have handled hundreds of firearms in my 66 years of shooting and seldom looked for the serial number. Plus serial numbers are stamped in different places on receivers or frames. You almost have to know the make and model to find the serial number. Serial numbers of revolvers such as my Ruger Security Six are on the bottom of the grip, currently hidden by the Hogue target grips I installed. My wife’s Taurus revolver has the serial number on the right side of the frame. Another pistol has the serial number on the backstrap of the frame (which a bad position since it is subject to wear).

    Prior to 1968, many millions of inexpensive .22 rimfire rifles and single barrel shotguns of the type kept in farm houses or barns were not given serial numbers. They are grandfathered and the lack of serial numbers is not considered a problem by ATF. People searching such unserialled guns for serial numbers might find assembly parts numbers, inspection dates, proof marks, model numbers, or even calibers, and report those as serial number which could be constructed into an unnecessary felon charge.

    ” blatantly obvious with the most casual handling ” NOT.

    If a person has done no harm to another person, it is criminal to make them a felon through some malum prohibitum statute.

    1. Let me repeat, with emphasis:

      **even if** it is blatantly obvious with the most casual handling”

      I also have pre-68 guns w/o serial numbers, and revolvers where they are hidden under grips, and rifles where they are hidden under scope mounts. Then there are foreign milsurps with assorted numbers in random alphabets where who knows what is or isn’t a serial number w/o research.

      But, you still see pictures of guns with serial numbers that were in obvious plain sight, before being crudely ground over. Those seem to make the ‘I never noticed!’ defense a little hard to credit.

      If you want to make the argument that one should be free to grind off serial numbers, OK. That’s a different issue than, given the current law forbidding removal of serial numbers, what needs to be proved about a defendant’s knowledge in order to convict.

      1. “If you want to make the argument that one should be free to grind off serial numbers …” NO I do not.

        The act of defacing a serial number is usually done with the intent of hiding the provenance, origin and chain of possession, of a serially number good. Gun, TV, car, whatever. I would count that as malum in se, an act done with questionable intents.

        At TheHighRoad we had a discussion in Legal on installing a scope mount over the serial number of a rifle. The lawyer moderators stated it cannot be done. No even if you have the original serial number etched or stamped on a visible part of the gun. There are jurisdictions that go beyond federal law to where, even if the mount is removable and the serial number legible underneath, covering the serial number with a scope mount prevented reading the serial number without disassembly and would be counted as a violation. (I don’t think the federal ATF is that strict.)

        1. There are jurisdictions where if you’re carrying a gun openly in a holster, and your arm swings in front of the holster, they’ll count that as concealed carry. And are willing to lie about your arm doing that. (This was a major motivation for the concealed carry movement.)

          Same general principle. People have to remember that not every jurisdiction is trying to be reasonable. Some are trying to trap you.

        2. “The act of defacing a serial number is usually done with the intent of hiding the provenance, origin and chain of possession, of a serially number good. Gun, TV, car, whatever.”

          It should also be pointed out that defacing the serial number of a gun is generally futile.

          The serial numbers are stamped into the metal. The stamping process slightly alters the structure of the metal under the numbers through nearly the entire thickness of the metal on which the numbers are stamped. As a result of this, even if ground off with power tools, the serial number can nearly always be recovered by acid etching the metal.

          1. How the serial is applied is far from universal.

            AR15s generally have the serial engraved rather than stamped, so I imagine defacing would be more effective.

        3. quoting Naaman Brown: “The act of defacing a serial number is usually done with the intent of hiding the provenance, origin and chain of possession, of a serially number good. Gun, TV, car, whatever. I would count that as malum in se, an act done with questionable intents.”

          YOU would so count it, but you buy the whole farm of intent based on your own projection of evil onto the one defacing. Then you call it “malum in se”. No, it is NOT malum in se, as no measurable harm is necessarily done EVERY TIME. When you are deliberately whacked over the head with a baseball bat harm is done.THAT is malum in se. When I swing that same bat in your near vicinity and make no contact, and no obvious intent to harm, perhaps I am careless, but have not HARMED you. Different critter.

          Yes, the act of swining a baseball bat directly toward your head COULD be done with questionable intent.. or purely evil intent, or totally innocently. You advocate jail time EVERY TIME. Not right.

      2. The worst case I have seen was an example with the serial number each digit ground out with a drill bit. That was obvious jail bait. (Years ago, it may have been the county sheriff’s office display of confiscated weapons.)

  7. Typo, Prof. ? “bannuning” in last paragraph. Did you mean “bananaing”?

      1. Hey, how come Eugene can fix typos after post and we can’t? No fair.

        1. I think you have to be cited in a SCOTUS opinion to get editing privileges.

        2. he gets paid to be right, we don’t. Simple

  8. ? 478.34 Removed, obliterated, or altered
    serial number.
    No person shall knowingly transport,
    ship, or receive in interstate or foreign
    commerce any firearm which has had the
    importer’s or manufacturer’s serial number
    removed, obliterated, or altered, or possess
    or receive any firearm which has had
    the importer’s or manufacturer’s serial
    number removed, obliterated, or altered
    and has, at any time, been shipped or
    transported in interstate or foreign commerce.

    Penalty for violation of 478.34 “altered serial number” is up to 5-years imprisonment if a Title I firearm (1968 Gun Control Act) or up to 10-years imprisonment if a Title II firearm (1934 National Firearms Act).

    1. Please note, the text of that USC begins with the words “no person shall KNOWINGLY….” do all that nasty stuff we arbitrarily don’t like done.

  9. I’m all for banning high capacity semi-automatic assault weapons with obliterated serial numbers. Of course, the UN manifesto on gun control does not require China and Russia to stamp country or origin or SN on AKs they make. So those are OK. But you cannot legally import or possess them. Definitely need a background check for them though. Even if bought at a US Gun Show and smuggled into Mexico.

    1. 2nd Amendment prohibits any infringement of the Peoples right to keep and bear Arms.

      No background checks. No bans. No serial number requirements. No ammo limits.

      1. lc1789: I’m reminded of the Far Side cartoon.

        Wife looks at the missile in the yard across the street and says to husband:

        “Wouldn’t you know it! Now the Hendersons have the bomb.”

        (Probably doesn’t have a serial number either…..)

      2. We can always amend the Constitution to not protect nukes.

        Anyone who can rally enough people to help them build a nuke for their Neverland Ranch, deserves to have nukes.

        BTW: The USA government still has the power to regulate any person or things (nukes) coming into the USA, so buying one from Russia for example is not an option.

        You have to have enough money and support to get all the materials, get hundreds or thousands of people to help you, get all the tech know how, build the nuke, and not be beaten to the market by a tech that negates nuke use.

        Good luck.

    2. What is a “high capacity semi-automatic assault weapon”? I understand what “semi-automatic” means when it comes to firearms, but the rest of the terms are fairly vague, with no real commonly accepted definitions. For example, in a handful of the states, 30 round AR-15 magazines are considered “high capacity”. In the rest of the states, as well as in the military, they are considered standard capacity magazines, and in many states, it is often hard to find lower capacity magazines in stores that sell them. “Assault weapons” is even more vague as a descriptive term for firearms. The term only really has any relevance in a handful of states, with each of those states describing them differently. Most egregious is one state, I believe, that defines Assault Weapons to be semiautomatic firearms with detachable magazines which seemingly sweeps in semiautomatic handguns (most of the handguns sold these days), as well as WW II M1 Carbines.

      1. The phrases “assault weapon” is completely meaningless. All guns can be used to commit an assault. By adding the word “assault” to descriptions of ordinary guns, activists hope to scare and mislead the public.

        One of the most extreme examples this is found in a Washington state ballot measure that recently passed:

        HERE IS THE DEFINITION OF “ASSAULT RIFLE”:
        “Semiautomatic assault rifle” means any rifle which utilizes a portion of the energy of a firing cartridge to extract the fired cartridge case and chamber the next round, and which requires a separate pull of the trigger to fire each cartridge.

        COMPARE TO US CODE DEFINITION (18 U.S. Code ? 921):
        The term “semiautomatic rifle” means any repeating rifle which utilizes a portion of the energy of a firing cartridge to extract the fired cartridge case and chamber the next round, and which requires a separate pull of the trigger to fire each cartridge.

        As you can see, the definitions are basically identical. Ordinary rifles are defined as assault rifles.

        Next time you hear someone talk about an “assault weapon” or an “assault rifle” you should consider pointing out to the person that they are repeating dishonest political propaganda designed to scare people. Look at the two definitions above. The dishonesty here is pretty blatant.

        1. Actually Washington State I-1639 ALSO lists what are NOT semi-automatic assault rifles:

          Manually loaded single shots, and repeaters that are bolt-action, pump-action, lever-action, or slide-ation, Everything not one of those is a semiautomatic assault weapon.

          Semi-auto sporting rifles that have been around for over a century (Winchester Model of 1905, Remington Model 8 (1905), Browning SA-22 (1914)) are semiautomatic assault rifles in Washington State.

        2. FBI Uniform Crime Reports, Table on Homicide by Weapon Type.

          Pick a recent year.

          700 to 800 homicides using personal weapons.

          350 to 400 homicides using rifles of all types.

          You are more likely to be murdered today by an unarmed assailant using his hands, fist, feet, or other personal weapons, than by an assailant using a semiauto assault rifle.

          The left wing answer to criminal violence since 1924 has been to criminalize gun owners by redefining their guns as contraband.

        3. The dishonesty here is pretty blatant.

          and that was not the ONLY dishonesty poured down the throats of ignorant Washington voters who bought this piece or horsebiscuit. The ballot petitions were NOT compliant with the Washington Constitutioin in several ways. It also is a CITIZENS” INITIATIVE, which, also per the WA Constitution, can ONLY deal with ONE ISSUE. This mess of madness makes nearly a dozen DIFFERENT changes to Wshington law…. and sjould NOT have been allowed on the ballot at all, but the corrupt WA Supreme Court let it stand on the ballot anyway.

          Bloomburg’s minions tried getting a nearly identical bill on the ballot in Oregon, same issues inside it, and same deceptions to get it on the ballot. State were sued, and the Oregon Supreme Cour,t being more moral than Washington’s, declared it could NOT be allowd to stay on the ballot because of the flaws inherent within it, and in its distribution for validation. Surprise when OR Supreme COurt gets it right and WA’s do not. Lawsuits pending, more to be filed.

  10. It should be a strict liability offense for homosexual men to spread HIV through unprotected anal sex.

    1. Another country heard from.

  11. “To avoid absolute liability, a mens rea must be inferred into the statute.”

    I beg to differ. A mens rea is inferred into the commonly recognized definition of guilt, therefore inferring it also into the statute would be redundant.

    Statutes can dispense of the mens rea under certain (and fairly rare) circumstances, but by no means is the mens rea stipulation optional by default.

  12. Almost all “gun control” laws in liberal states are designed to harass, annoy, and make unwitting felons out of gun owners. They are further designed to make the hurdle into gun ownership so high, complicated, and expensive that most will not bother.

    I lived in the NJ/NY area for about a year for work. Now i have an advanced education and set about to determine what I would need to lawfully bring a few firearms with me to legally store them at my residence. The paperwork, licenses, and process were mind boggling and it would have taken me just about as much time to obtain all the permission necessary just to legally transport and possess these firearms (simple rifles and a pistol) in my house, (forget about carrying) as the employment contract that was triggering the move.

    Ended up just storing them in a secure locker at a gun club in another state instead of dealing with the hassle or the potential of becoming a felon because I missed a piece of paperwork or forgot to register something with an obscure agency.

    Imagine the outcry if regulations so complex as this were put on speech. How long would the courts allow that to happen? Probably about 2.5 seconds.

    1. Exactly. Some examples:

      -In New York, you can only buy ammunition for a pistol you have registered on your permit. This means that you are out of lock if you have a carbine without a corresponding pistol.
      -Also in New York, you can only possess a pistol you have on your permit, but can’t register a pistol on your permit (at a police station) unless you have possession of it. Catch 22
      -In New Jersey, you must pay $15 (plus sales tax on the state fee) to run the background check. Since you can only buy one pistol a month, you must pay it for as many times as you are buying pistols.
      -In New Jersey, you must get a separate permit to purchase each pistol, which expires in 90 days. The state just made it illegal to use these for private transfers, even though a background check was already run for that permit just 90 days (maximum) ago. That means you pay the $16 plus transfer cost at a dealer fee.
      -You apply in New Jersey for an FOID (to purchase long guns), But when you apply for the pistol purchase permits down the road, you must apply and get the background check, mental health check, and character references (including employer notification) AGAIN.
      -In California, you must wait 10 days to buy a pistol, EVEN IF you already have one.

      1. “In New York, you can only buy ammunition for a pistol you have registered on your permit. This means that you are out of lock if you have a carbine without a corresponding pistol.”

        A carbine is a rifle, a long gun. Most carbines that I am aware of use rifle ammo, not pistol ammo. I have a 30/30 rifle that would be consider a carbine. Try finding a pistol in .30/30 Winchester.

        1. “Try finding a pistol in .30/30 Winchester.”

          Magnum Research BFR. I think the 45/70 is more common than the 30/30.

          “Most carbines that I am aware of use rifle ammo, not pistol ammo”

          Pistol caliber carbines are common – Marlin’s 1894 series, a zillion AR variants, Ruger’s PCC, Beretta CX4, … that’s just scratching the surface.

          1. “Pistol caliber carbines”

            Caliber has little to nothing to do with the difference between pistol and rifle ammo. Pistols generally use relatively short cartridges with smaller propellant charges and rifles use longer cartridges with larger propellant charges.

            The reason for this has to do with barrel length. If the projectile exits the barrel before all the propellant has been burned, the extra energy was wasted.

            1. So you’ve explained why you wouldn’t use rifle ammo in a pistol, but not the converse provided it could use the ammo to begin with.

        2. There are many 9mm carbines. The Kel-tec Sub2k is a popular one.

        3. I have a Marlin lever action in 44 Magnum and a Contender pistol in 30/30. Neither are very unusual.

        4. I own rifles in .38/.357 Mag, .44 Mag, .22 LR, .22 Mag, and have seen carbines (long guns) in 9 mm, 10 mm, 45 ACP, so do I have to bring in the rifle the ammunition is intended to fire to prove I need RIFLE ammunition for it? Of course, whaddya speck from Joisey an Noo Yawk?

      2. 10 days in California applies to all firearms, not just handguns.

        1. Interesting. It’s supremely stupid. I can at least sort of see the logic with the waiting period for the first one, but the others is just to harass and annoy.

          1. And the waiting period in California applies even if you have a CCW.

        2. ten days WILL ALSO apply in Washington unless an injunction is granted before July. On all firearms. Seem to have nightmares about a one gun a month insanity being part of that bucket of poop Blooomie bought us, too.

    2. These laws are not intended to reduce crime. They’re meant to anger and inconvenience law abiding people. In the New Jersey example, there wasn’t a SINGLE example of a criminal who was prohibited by NICS purchasing a rifle/handgun privately in accordance with the old law requiring a FOID card/pistol permit. Not. One.

  13. I wonder, and I generally don’t know what I think on this one, whether the court, instead of “saving” the statute by reading a mens rea requirement into it might just rule the entire statute unconstitutionally vague instead.

    Here, the mens rea requirement that is read into the statute is “knowing.” Which seems entirely sensible to me as a matter of policy and if I were in the Illinois legislature, I probably would vote for this level of knowledge for this particular statute. However, having the court rather than the legislature put that there is problematic, in my mind. For two reasons.

    First, because the court is really only speculating about what the legislature would do and what it intended. Did the legislature intend “knowing” or did it intend “reckless”? Did it actually intend to create a strict liability offense or did it assume that the courts would “do something sensible?”

    1. Second, and much more significantly, the problem here is a basic one of having written law that citizens can, if they so desire, actually read and understand on their own. For the most part, without lawyers. For ordinary activities (as opposed to complicated business enterprises), a person ought to be able to determine whether their behavior is lawful by looking at the criminal code itself. And I would say, by looking at the criminal code alone and not hiring a lawyer to research case law, since that is, in the vast majority of cases, simply excessive and impractical and also can lead to uncertain answers in many cases. People ought to be able to determine their duties under the criminal law without a lot of guessing and by looking at the code itself as the authoritative source.

      One point of codifying the law was to limit the ability of courts to create new common law crimes. One problem with common law crimes is that they can act in an ex post facto manner. Surprise! The behavior that you thought was legal is actually illegal because the court decided to use your case as an opportunity to create a new common law crime! Another point was creating a place where people could read the criminal laws that govern their behavior. Well, when you have a missing mens rea requirement, you don’t really know what the law requires of you, do you?

      On the other hand, I might be perfectly right about this. But how to fix this problem is an issue that deserves thought.

  14. Sounds like “Ignorance of the law is no excuse”. has left the building for good.

    1. You are confused. This is not about ignorance of the law. It is about ignorance of whether a particular gun has a defaced serial number or not.

  15. Any chance requiring serial numbers is compelled speech?
    Any chance modifying / destroying serial numbers is political free speech?

    Yeah, didn’t think so.

  16. “To avoid absolute liability, a mens rea must be inferred into the statute …”

    Inferred into? Is this what they call legalese? Perhaps interred would be at least closer.

  17. Love the slow dismantling of mens rea for the sake of guns. The drug war will be finished soon .. thank you NRA

  18. It should be noted that firearms are not, in general, required to have identifying numbers. Some weapons are hand made without numbers.

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