Antique Firearms, Black Powder Ammo in Felon-in-Possession Case

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By William Peacock, Esq. on October 02, 2013 3:53 PM

When is a gun not a gun? When it's really, really old, apparently.

Thomas Royal is a felon. Felons can't have guns or ammo, per the Gun Control Act, but that same act creates an interesting loophole: antique arms. Royal, when he was tased by police officers, was packing an antique Iver Johnson break-open revolver, .32 caliber, which was apparently manufactured "in or before 1898." That meant, per the GCA, that he was not violating the law.

Except he also had bullets.

(Sidebar for firearm factoid: Both President William McKinley and Senator Robert Kennedy were assassinated with Iver Johnson revolvers.)

Now, the bullets weren't made "in or before 1898," but that straight-forward standard doesn't apply to the ammo. Instead, due to an overly-literal reading of the statute, we end up with this test, as articulated by the Seventh Circuit:

Bullets are "ammunition" if they are "designed for use in any firearm." 18 U.S.C. § 921(a)(17)([A]) (emphasis added). If these bullets had been designed exclusively for use in [defendant's antique] revolver, they would not be "ammunition" because by definition this antique revolver is not a "firearm." On the other hand, if the bullets were designed for use, not just in this antique revolver, but in other guns manufactured after 1898, then it would appear, given the literal language of the definition, that they are "ammunition" because they would be designed for any firearm.

Lets break down this complicated test.

  • It's not a "firearm" if the gun was made in 1898 or earlier;
  • If the bullet fits in a gun made after 1898, it fits in a "firearm," and is therefore "ammunition."
  • If a felon has either a "firearm" or "ammunition," he violates the GCA.

Of course, they could just take a shortcut, go to Google, and discover that the Remington and Winchester ammunition found in his gun is almost certainly not black powder. The .32 S&W black powder rounds have been obsolete since 1909, and as you might expect, finding ammo is pretty much impossible outside of custom shops.

Based simply on the ammo brands listed in the court's opinion, we're already 95 percent sure that the bullets Royal had work in third-generation Iver Johnson revolvers manufactured in 1909 or later.

(Final Sidebar for firearm factoid: If he had fired modern bullets in a pre-1909 Iver Johnson revolver, there is a good chance that it would have exploded.)

Shortcuts aside, the court took a different route and held that because he was seeking an exemption from the statute, it was his burden to prove, as an affirmative defense, that the ammo flunked the Seventh Circuit's test. The same burden applies to claims of antique firearms. He failed to meet that burden at trial.

It wasn't all bad news, for Royal however. The Fourth Circuit also used the Supreme Court's recent Descamps v. United States holding to overturn a sentence enhancement under the Armed Career Criminal Act (ACCA), which led to his fifteen-year sentence. He'll face a maximum of ten years on remand.

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