Felon and Black Powder

[FlyingRon]

Well you go beat on the Texass legislature. The courts interpret the word antique and curio to mean guns that aren't being fired.

You can argue what you want, but you'll not win this one in a Texas court.

 

[BoredAtty]

Well you go beat on the Texass legislature. The courts interpret the word antique and curio to mean guns that aren't being fired.

You can argue what you want, but you'll not win this one in a Texas court.

Out of curiosity, what case(s) are you referring to?

Regardless, I think you're missing the point. The OP is wondering if a felon can own black powder; not whether a felon can own a gun that can be fired.

 

[xylene]

What is the name of your state? TEXAS

Can a felon legally own black powder for a muzzle loading antique gun?

This is exactly what the poster is asking.

FOR a muzzle loading gun.

Now I suppose he wants to own powder for a gun, but not own the gun, but that would be at best a very obtuse way of interpreting the question.

Also I do not see how the federal definition of ammunition excludes black powder, when it specifically states

(17)
(A) The term “ammunition” means ammunition or cartridge cases, primers, bullets, or propellent powder designed for use in any firearm.

I do not see how propellant powder designed for use in any firearm excludes black powder or includes only nitro based powders.

Additionally, the laws regarding explosives are specific and don't encompass gunpowder.

You are confusing limits to BATFE regulatory authority with legal permission. Federal explosive violations do not begin a 50 pounds, simply because lawful transactions under 50 lbs are not subject to review and reporting. Nothing about the fact that a ATF form need not be filed makes it legal for a felon to posses explosives.

Lastly, the key issue is latitude.

In George Bush's post 9/11 America, Possessing even a single rocket motor with intent to use outside of the scope of legally allowed parameters can end in prosecution, despite the fact that no felons and far less than 50 lbs (a few ounces) of black powder are involved.

I just don't believe that, push come to shove, that Law Enforcement, Prosecutors, and Judges and are going to be in the mood for slack cutting to a convicted felon who wants to skirt the clear intent (and in this lay opinion, the letter) of the law to own/use an operable black powder rifle.

If this guy wants a legal battle, the better one to fight for would be a full restoration of his civil rights, rather than a black powder loop hole (or more accurately noose). This issue is not new, it has been widely discussed by many in shooting forums. There is no consensus, but plenty of rhetoric form gun advocates itching for a test case, and troubled stories from felon wanna-be shooters/hunters who found themselves in legal hot water.

 

[BoredAtty]

This is exactly what the poster is asking.

FOR a muzzle loading gun.

Now I suppose he wants to own powder for a gun, but not own the gun, but that would be at best a very obtuse way of interpreting the question.

My post was more a comment on the importance of you posting the case law you touted after I had asked about it. I had hoped you would provide a citation, but it wasn't imperative to the OP's question. I wasn't intending to attack your assumptions about the OP's gun possession status.

I do not see how propellant powder designed for use in any firearm excludes black powder or includes only nitro based powders.

Here is my logic based upon the definitions in the USC:

What is prohibited? A felon may not possess ammunition. What is ammunition? It's something designed to be used in a firearm. What is a firearm? It's not an antique. What is an antique? A muzzle loader that is designed to use black powder. Assuming that only muzzle loading guns use black powder, then black powder is not ammunition. I admit that last is an assumption based on what gun people have told me (that black powder is not used in non-muzzle loading guns). If black powder is ordinarily used in non-muzzle loading guns, then my conclusion is not correct.

You are confusing limits to BATFE regulatory authority with legal permission. Federal explosive violations do not begin a 50 pounds, simply because lawful transactions under 50 lbs are not subject to review and reporting. Nothing about the fact that a ATF form need not be filed makes it legal for a felon to posses explosives.

I'm not confusing anything...I just didn't see anything applicable. Please cite the explosives law that encompasses black powder. I'm not saying it doesn't exist, but I just didn't see it. I am open to being corrected. If I find something in a quick search of case law, I'll post it back here.

 

[CdwJava]

If black powder is ordinarily used in non-muzzle loading guns, then my conclusion is not correct.

One does not generally use the same type/size of powder for muzzle loaders in even ammunition reloads.

- Carl

 

[CavemanLawyer]

Well you go beat on the Texass legislature. The courts interpret the word antique and curio to mean guns that aren't being fired.

You can argue what you want, but you'll not win this one in a Texas court.

I know what case you are talking about. It's. Vaughn v. State, 600 S.W.2d 314 (Tex.Cr.App., 1980.)

The statutory provision excepting antique firearms from the definition of "deadly weapon" pertains only to weapons possession offenses, not to assaultive offenses.

But I don't think it really matters according to what the poster is asking. All this really says is that an antique weapon can still qualify as a per se deadly weapon when seeking a deadly weapon finding in an assaultive offense. It's not like you can be charged with possession of a firearm by felon because you used an antique weapon, even in a direct assault of someone. You absolutely cannot, because for any possession case, the definition of firearm expressly exempts qualified antiques/replicas. But if you shoot an antique weapon at someone, whether you are a convicted felon or not, you can be convicted of agg. assault with a deadly weapon. You can actually always get a deadly weapon finding for ANYTHING as long as it was used as a deadly weapon (ex: pencil, towel, pillow, hand, fist, etc..) But under the deadly weapon definition a firearm is per se a deadly weapon (its the only per se deadly weapon.) So if you used an antique weapon to commit an assault, an antique gun WOULD qualify as a firearm, and therefore would be a per se deadly weapon. I think my point is that none of this has anything to do with the actor being a felon, and its irrelevant to any possession charge.

But to bring this all back to the original poster's question, I simply cannot conceive of how owning a qualified antique/replica gun or owning gun powder or owning both together could EVER be prohibited because you are a felon. The gun is exempted and the law simply has nothing to do with powder whatsoever. The definition of firearm clearly doesn't apply to the ammo or the powder.

Possessing ammo or powder could be possession of contraband if it were sufficiently connected with some illegal activity. This isn't saying much since just about anything can become contraband. (ex: conducting illegal gambling, your blank pad and pencil can be considered contraband.) But this has nothing to do with being a felon, it applies to everyone equally.

Possessing just the powder could be a crime if it can be proven that you possessed it with the intent to combine it with components to make an explosive device for use in a criminal endeavor. 46.09. But again, this has nothing to do with being a felon.

As far as the Feds, they have no jurisdiction if you are just keeping the gun and/or the powder in your home. It is not being transported interstate and it does not affect interstate commerce.

 

[BoredAtty]

As far as the Feds, they have no jurisdiction if you are just keeping the gun and/or the powder in your home. It is not being transported interstate and it does not affect interstate commerce.

I'll have to disagree with you there. The pertinent part of the federal law states:

(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

If the ammunition/gun traveled in interstate commerce at one time, then the federal law is applicable. The felon does not need to transport the ammunition/gun himself. Also, after the Supreme Court's marijuana case in 2005, I'm not even confident that the law wouldn't apply if the ammunition/gun were completely indigenous to Texas.

 

[Crazed98]

Also, after the Supreme Court's marijuana case in 2005, I'm not even confident that the law wouldn't apply if the ammunition/gun were completely indigenous to Texas.

Their ruling was based on the fact that Raich was growing the marijuana for personal use (which the courts decided can be interpreted as commerce) thus affecting the interstate commerce of marijuana.

If he already owns the gun then it might not be considered as affecting commerce.

 

[BoredAtty]

Their ruling was based on the fact that Raich was growing the marijuana for personal use (which the courts decided can be interpreted as commerce) thus affecting the interstate commerce of marijuana.

If he already owns the gun then it might not be considered as affecting commerce.

I'm not following your argument. Can you elaborate?

 

[Crazed98]

I'm not following your argument. Can you elaborate?

Even though marijuana is illegal there is commerce of it. Growing your own means you don't have to buy it from the market hence lowering demand and affecting commerce.

His firearm may not imply.

 

[BoredAtty]

Even though marijuana is illegal there is commerce of it. Growing your own means you don't have to buy it from the market hence lowering demand and affecting commerce.

His firearm may not imply.

Why wouldn't the firearm apply? Even if it were 100% from Texas like home grown marijuana, the fact that the felon could have bought a firearm through interstate commerce lowers the demand of firearms (albeit by only 1) and affects interstate commerce in the same way.

 

[Crazed98]

Why wouldn't the firearm apply? Even if it were 100% from Texas like home grown marijuana, the fact that the felon could have bought a firearm through interstate commerce lowers the demand of firearms (albeit by only 1) and affects interstate commerce in the same way.

It can be construed that way but, as far as the Raich case was concerned owning the marijuana was fine. But, growing marijuana so you did not have to buy more affected commerce.

 

[BoredAtty]

It can be construed that way but, as far as the Raich case was concerned owning the marijuana was fine. But, growing marijuana so you did not have to buy more affected commerce.

That's not an accurate assessment of the case.

In Raich, the court concluded that the federal Controlled Substances Act, which regulates marijuana (including possession of it), is Constitutional -- even with regard to locally grown marijuana. Thus, possessing locally grown marijuana is illegal.

Ironically, Angel Raich herself did NOT grow marijuana. The facts in the case state that she received it from others who grew it locally.

 

[Crazed98]

Ironically, Angel Raich herself did NOT grow marijuana. The facts in the case state that she received it from others who grew it locally.

If that was true then my sources were incorrect.

 

[BoredAtty]

If that was true then my sources were incorrect.

Your sources were definitely incorrect. I'm sure you can find the case online if you Google it, but since I have it right here, I'll post some portions of the case relevant to our discussion:

Respondent Monson cultivates her own marijuana, and ingests the drug in a variety of ways including smoking and using a vaporizer. Respondent Raich, by contrast, is unable to cultivate her own, and thus relies on two caregivers, litigating as "John Does," to provide her with locally grown marijuana at no charge. These caregivers also process the cannabis into hashish or keif, and Raich herself processes some of the marijuana into oils, balms, and foods for consumption.

By classifying marijuana as a Schedule I drug, as opposed to listing it on a lesser schedule, the manufacture, distribution, or possession of marijuana became a criminal offense [...].

[R]espondents' challenge is actually quite limited; they argue that the CSA's categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress' authority under the Commerce Clause.​

As you can see, possession was definitely part of the discussion, as it is an act prohibited by the federal law. The Supreme Court upheld the federal law, and thus, possessing locally grown marijuana is illegal.