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  1. #1
    ExTrucker is offline Junior Member
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    Ex-Felons And Black Powder Weapons -- Legal?

    What is the name of your state? Colorado

    I was convicted of a Federal felony back in 1985, served my time and have not been in trouble since.

    I am contemplating the purchase of a modern black powder rifle (a CVA .50 caliber single shot "Buckhorn" rifle) for personal protection while in the woods -- I do gold prospecting during the spring & summer, and live in the woods for extended periods of up to 6 months at a time.

    The rifle will be transported in the bed of my pickup truck through virtually all of the western states (CO, NM, AZ, WY, ID, MT, WA, CA & OR) -- unloaded and trigger-locked when I am not in the woods. I plan to carry enough Pyridex (a black powder substitute), bullets & #209 shotshell primers for approximately 20 shots. This weapon will only be used for protection against wild animals (bears, cougars, coyotes & mountain lions mostly).

    The last I knew, black powder weapons were specifically exempted from the gun control laws. I do know that my purchase will be a simple "cash & carry" transaction at my local Wal-Mart -- no forms or identification required. This leads me to believe that I am correct in my belief that my ownership of this weapon is legal -- however, I want to make absolutely sure that I am not violating the law before I actually make the purchase.

    Can one or more of you please advise me as to the legality of this purchase and ownership? Thank you!

    John E. Smith
    Alamosa, COWhat is the name of your state?
    Last edited by ExTrucker; 12-13-2007 at 11:52 PM.
  2. #2
    SHORTY LONG is offline Senior Member
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    Given the state we are in today's time, I would contact the ATF, and field your questions, and concerns to them.
    Ecc 7:1 A good name [is] better than precious ointment; and the day of death than the day of one's birth.

    "There are two letter[s] in the word of [Life] that, in part gives direct meaning to it, "IF."" By /SL/ aka., April 23, 2008

    Only by cutting through the darkness of ignorance, and prejudice can we achieve true justice; and
    to all those who corrupt the search for truth be warned, the "Sword of Justice" cuts both ways!
  3. #3
    ExTrucker is offline Junior Member
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    I did some research last night, and I have ascertained that it is legal for me to own the weapon I described under Federal law. The language of 18 USC 921 is clear, and specifically states that muzzleloaders are not considered firearms -- they may be legally owned and possessed by an ex-felon.

    My question now regards the individual states. California uses the same language as the Feds, and also specifically exempts muzzleloaders -- their law even references the Federal statute, in fact. Arizona does not seem to make any distinction between regular firearms and muzzleloaders -- so they may be a problem. Colorado is similar to California in their language, and I am ok there.

    I have not been able to research the other states yet, so if any one has some further insight, please feel free to post a response!

    John E. Smith
    Alamosa, Colorado
  4. #4
    Some Random Guy is offline Senior Member
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    This topic has been discussed at length on this site, most recently on this thread for Texas

    [url]http://forum.freeadvice.com/showthread.php?t=386120[/url]

    use the search tool in the upper right and type in "black powder"
  5. #5
    ExTrucker is offline Junior Member
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    Yes, I read the thread regarding Texas -- but it is not germane to my situation, since I will not be possessing the weapong in that state. I have already ascertained that I will be legal under Federal law & California law; not so under Arizona law though, since they make no distinction between black powder muzzleloaders and cartridge-type firearms.

    My question is very specific, and is limited to those states listed in my original post; I will be possessing the weapon only in those states.
  6. #6
    xylene is offline Senior Member
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    Lightbulb

    Quote Originally Posted by ExTrucker View Post
    Yes, I read the thread regarding Texas -- but it is not germane to my situation, since I will not be possessing the weapong in that state. I have already ascertained that I will be legal under Federal law & California law; not so under Arizona law though, since they make no distinction between black powder muzzleloaders and cartridge-type firearms.

    My question is very specific, and is limited to those states listed in my original post; I will be possessing the weapon only in those states.
    What do you mean by ascertained?

    If you mean internet research, the point is hardly certain.

    If you are in possession of a legal opinion from an expert who is offering a guarantee that provides you a legal defense... that would be ascertained.

    If you are in possession of a position paper from the BATFE, that names you or at least your exact circumstances, as specifically as exempt, it is not ascertained.

    You need to appreciate, that while you may not be guilty of an offense to find yourself subject to law enforcement action, arrest and prosecution. Any of which would at best involve significant time and expense.

    This is an element of the issue. A doubt a law enforcement officer would make fine differentiations about explosives, and I think this point was lost the texas thread.

    Read any gun forum, this issue comes up, and offenders do get hassled. Legality becomes a very academic question when you are sitting in jail.

    I don't doubt your sincere motives, and my opinion is not based on any desire to see you 'punished' for having a criminal history.

    I do think however that you will not be able to lay out the pretty darn elaborate and convoluted legal rationale for a black powder firearms exemption in every situation you may encounter without being arrest or otherwise requiring legal process.

    Also, you research should have revealed that gun control forces on the state and federal level are very much working to explicitly close this narrow definitional loophole.
  7. #7
    ExTrucker is offline Junior Member
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    By ascertained, I mean that I have actually read the statutes -- the Federal statutes are extremely clear (unusual for a Federal statute). Please read my post in the "Texas" thread that I put up a few minutes ago -- [url]http://forum.freeadvice.com/showthread.php?p=1790823#post1790823[/url] -- and you will see what I mean.

    I am not really worried about the average cop on the street -- most officers are willing to listen to reason, and having a printed copy of the statute to show will help a great deal. My concern is with those states who might not have as clear a statute as the Feds do. California modeled their statute after the Federal statute -- almost word for word -- and is very clear on the subject.

    In those states which DO NOT differentiate between muzzleloaders and cartridge weapons, I am not itching for a legal fight -- I plan to simply by-pass those states during my travels. Or, alternatively, I will ship my weapon to the other side of the state and retrieve it after I exit that state -- problem solved. In order for this to work, though, I need to know which states lump muzzleloaders in with cartridge firearms.
  8. #8
    xylene is offline Senior Member
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    Lightbulb

    If you are already convinced, then what it you are asking?

    The plain text of any law is ALWAYS contextualized by:

    1st: Law enforcement's policy and posture.
    2nd: Case law.
    3rd: Prosecutor's discretion.

    If you were arrested, put to a lenghty trial or other legal procedigns, you would have little recourse but to defend yourself

    Black powder, in transactions of under 25 pounds, (and not for resale) is not classified as a reporting required explosive transaction by the BATFE.

    Black powder is widely recognized by the law enforcement community, and the BATFE as the number one explosive component of domestic pipe bombs and other IEDs. Possession alone of FAR LESS than 25 lbs of explosives can, and often are, certainly treated as explosive violations (very serious felonies)

    A more comprehensive approach.

    You need to actually contact executive branch authorities involved with policing such matters.

    You will not be flagged for asking. If you want the straight dope on policy and posture (the most important thing in understanding the law enforcement reaction you might recieve) you should contact:

    A BATFE policy officer (in DC)

    A Representative from the state police agency in each state you intend to visit who speaks for their gun / explosives unit.

    A sheriff or other local law enforcement officer in an area that 'typifies' the places you will be visiting.

    I am surprised that as someone who has dealt with criminal law first hand you are supremely confident of being able to reason with an officer and avoid arrest (even an incorrect one)

    As an ordinary citizen I have never encountered any situation where any amount of verbal reasoning had changed ANY conclusion a law enforcement officer had already drawn before speaking to me. The only reason questions were asked at all was to elicit incriminating statements and not to develop an clearer picture....
  9. #9
    ExTrucker is offline Junior Member
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    Quote Originally Posted by xylene View Post
    If you are already convinced, then what it you are asking?
    I was asking about the individual states that I have not been able to research yet.

    Quote Originally Posted by xylene View Post
    The plain text of any law is ALWAYS contextualized by:

    1st: Law enforcement's policy and posture.
    2nd: Case law.
    3rd: Prosecutor's discretion.
    Law enforcement policy and posture cannot deviate from the provisions and requirements of the statute. That is the beauty of the American "checks & balances" -- law enforcement can only enforce the laws as they are written. And the Federal statute is exceedingly clear and un-ambiguous, and leaves no room for adverse interpretation.

    In this particular context, Case Law (what little that exists) supports the clear language of the statute in every single case.

    While Federal prosecutors have wide discretion, they cannot prosecute for an offense that is not authorized by the statute involved. Since the statute clearly and un-equivocably states that muzzleloaders are not defined as firearms, a Federal prosecutor cannot choose to prosecute and effectively ignore the intent of Congress as clearly stated by the statute.

    Quote Originally Posted by xylene View Post
    Black powder, in transactions of under 25 pounds, (and not for resale) is not classified as a reporting required explosive transaction by the BATFE.
    You are thinking of smokeless powder. Black powder is not classified as an explosive at all by the BATFE.

    Quote Originally Posted by xylene View Post
    Black powder is widely recognized by the law enforcement community, and the BATFE as the number one explosive component of domestic pipe bombs and other IEDs. Possession alone of FAR LESS than 25 lbs of explosives can, and often are, certainly treated as explosive violations (very serious felonies)
    Again, you are thinking of smokeless powder. Black powder does not have the necessary ignition qualities for use in pipe bombs or IED's. Smokeless powder, on the other hand, does -- and is regulated by law both by the BATFE and the Department of Transportation.

    Quote Originally Posted by xylene View Post
    A more comprehensive approach.

    You need to actually contact executive branch authorities involved with policing such matters.

    You will not be flagged for asking. If you want the straight dope on policy and posture (the most important thing in understanding the law enforcement reaction you might recieve) you should contact:

    A BATFE policy officer (in DC)
    Again, the BATFE cannot deviate from statute -- they can only enforce it. And since the statute is so clear, their role in enforcing it is equally clear.

    Quote Originally Posted by xylene View Post
    A Representative from the state police agency in each state you intend to visit who speaks for their gun / explosives unit.

    A sheriff or other local law enforcement officer in an area that 'typifies' the places you will be visiting.
    This is good advice in those states whose statutes do not differentiate between black powder muzzleloaders and cartridge-type weapons. The statutes in those states are ambiguous enough to allow law enforcement to "selectively enforce" specific instances. But in states which DO differentiate in their statutes, these agencies can not arrest or prosecute for an act which is made a "non-crime" by their own statutes.

    Quote Originally Posted by xylene View Post
    I am surprised that as someone who has dealt with criminal law first hand you are supremely confident of being able to reason with an officer and avoid arrest (even an incorrect one)

    As an ordinary citizen I have never encountered any situation where any amount of verbal reasoning had changed ANY conclusion a law enforcement officer had already drawn before speaking to me. The only reason questions were asked at all was to elicit incriminating statements and not to develop an clearer picture....
    Then I am sorry for your negative experience with American justice. It has been my experience throughout the 40+ years of dealing with police officers that "Attitude Is Everything". Yes, I have had some instances where the officer on the scene has made an erroneous judgement call in the absence of legal definition, but this was always corrected upon the arrival of his supervisor. In the instances where I was actually arrested and prosecuted, it was very clear that I had committed a crime.

    John E. Smith
    Alamosa, Colorado
  10. #10
    xylene is offline Senior Member
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    [QUOTE=ExTrucker;1790938]While Federal prosecutors have wide discretion, they cannot prosecute for an offense that is not authorized by the statute involved. Since the statute clearly and un-equivocably states that muzzleloaders are not defined as firearms, a Federal prosecutor cannot choose to prosecute and effectively ignore the intent of Congress as clearly stated by the statute.[QUOTE]

    I doubt the prosecution would be for firearm, although possible, IMHO it would be about the powder.

    You are thinking of smokeless powder. Black powder is not classified as an explosive at all by the BATFE.
    Black powder is classified as an explosive by the BATFE. ONLY transactions involving more than 25 pounds are subject to explosives reporting.


    Again, you are thinking of smokeless powder. Black powder does not have the necessary ignition qualities for use in pipe bombs or IED's. Smokeless powder, on the other hand, does -- and is regulated by law both by the BATFE and the Department of Transportation.
    I'm thinking of nothing. The BATFE policy papers cite access to black powder as a threat and enumerate significant number of black powder pipe bombings.

    Smokeless powder is is also allocated the same 25 pound reporting exemption as nitro based powders.

    That would be the BATFE is in fact treating them the same.

    Again, the BATFE cannot deviate from statute -- they can only enforce it. And since the statute is so clear, their role in enforcing it is equally clear.


    I'm sorry, for me the clincher in the federal firearm definition is this.

    any combination thereof

    This is good advice in those states whose statutes do not differentiate between black powder muzzleloaders and cartridge-type weapons. The statutes in those states are ambiguous enough to allow law enforcement to "selectively enforce" specific instances. But in states which DO differentiate in their statutes, these agencies can not arrest or prosecute for an act which is made a "non-crime" by their own statutes.
    Whenever an advocate throws the term 'non-crime' around... well be sure you have a lawyer on retainer and some bond money he can get at.

    Then I am sorry for your negative experience with American justice. It has been my experience throughout the 40+ years of dealing with police officers that "Attitude Is Everything". Yes, I have had some instances where the officer on the scene has made an erroneous judgement call in the absence of legal definition, but this was always corrected upon the arrival of his supervisor. In the instances where I was actually arrested and prosecuted, it was very clear that I had committed a crime.
    Ok. Good luck with that.
  11. #11
    cabowhunter is offline Junior Member
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    Cabowhunter

    I would like to know exactly what California statute governs muzzleloaders vs other firearms, I am also a ex-felon (feloney over 20years ago), I have inquired to the California Department of Justice regarding this subject, because if I do purchase a muzzleloader for hunting I would not do so unless I had a clearance from the California Department of Justice, and had that on me at all times. I would just like to know the statute that mimmicks the Federal statute here in California, so that I can better position my argument towards the CaDOJ.

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