As a police officer and chief investigator for the Stark County Coroner’s Office explained, federal law did not require Claren to undergo a background check to purchase the replica of the antique firearm. However, it appears that Ohio's state law did require a background check. [More]This just came across the transom as I was preparing to call it a week and I don't have much time to spend right now. I confess to never considering this before having never been in the market for one, but ILA seems to agree:
Antiques and Replicas - Antique and antique replica rifles, shotguns, or handguns are treated like modern arms for possession, carrying and purchase purposes.I don't see where that language appears in Ohio Revised Code. What I found there says:
(L) "Dangerous ordnance" does not include any of the following: (1) Any firearm, including a military weapon and the ammunition for that weapon, and regardless of its actual age, that employs a percussion cap or other obsolete ignition system, or that is designed and safe for use only with black powder;Well that certainly confuses the issue.
I have no idea how PLCAA would factor into any of this for civil protection, or what the extent of damage to the company will be if it turns out this has been an ongoing practice rather than a one-time slip-up, and if this opens a door to criminal charges.
Anybody with knowledge about this know the relevant ORC section or have experience/insights? I'll make a point of checking comments over the next few hours if you do.
And none of this alters a fundamental truth.
[Via Mack H]
UPDATE: Also, would NICS be the mechanism for conducting the check, and what is the state's criminal penalty for violation?
I don't know about Ohio law. But for legal purposes in the state of Kentucky, any device that expels a projectile using explosives is considered a firearm. Black powder and it's substitutes and smokeless powder are defined as explosives for the law. So for "felon in possession" or other firearm "crimes" a black powder weapon is considered a firearm.
ReplyDeleteBut Kentucky does not require retail dealers to do background checks on black powder weapons.
It would be interesting to see how the law will treat modern air rifles that can shoot 50 cal rounds at modern velocities.
Your link also has this: " "Firearm" means any deadly weapon capable of expelling or propelling one or more projectiles by the action of an explosive or combustible propellant. "Firearm" includes an unloaded firearm, and any firearm that is inoperable but that can readily be rendered operable."
ReplyDeleteNo differentiation between metallic cartridge and black powder arms. What I was going to look for before getting sidetracked by visiting kids is Ohio statutes on background checks. Some states have their own guidance on checks (UBC, or going through state system like Nevada). Some simply rely on federal law. I don't know yet how Ohio handles it. If they simply defer to federal law, as many states do, Cabelas should be safe.
But if Ohio has its own law that says, All firearms sold by a dealer must have a background check," then Cabelas is in trouble.
OK, this might be where Cabelas could be in violation of Ohio law:
ReplyDeletehttp://codes.ohio.gov/orc/2923.20v1
===
2923.20 Unlawful transaction in weapons.
(A) No person shall:
(1) Recklessly sell, lend, give, or furnish any firearm to any person prohibited by section 2923.13 or 2923.15 of the Revised Code from acquiring or using any firearm, or recklessly sell, lend, give, or furnish any dangerous ordnance to any person prohibited by section 2923.13, 2923.15, or 2923.17 of the Revised Code from acquiring or using any dangerous ordnance;
===
Glad I'm not a lawyer who has to fight this in court. On either side of the argument.
Illinois has a similar clause in their foid act. It basically excludes antique arms from most restrictions, then says the state police will determine the definition of antique arms. As far as I can tell, they have never issued any guidelines or lists of what qualifies. Also last time I checked, their website says you have to have a foid card to have a muzzle loader.
ReplyDeleteI would not want to have to sort out that kind of mess in court!
Laws should be consistent and understandable. Since we don't live in an ideal world, we get this. I don't wish this on any firearms business but I prefer to see one with resources (Cabela's/Bass Pro) fighting this case to Ma and Pa's Gun Shop in Small Town, Ohio. The latter is more likely to roll over and lose their business while Cabela's will fight.
ReplyDeleteIIRC, Florida had a case a while back where during a traffic stop the LEO found a loaded .44 Colt 1860 Army replica under the driver's seat. The driver squeaked through a loophole, since closed, where the definition of a firearm mentioned propellant or explosive but another section of state law specifically excluded black powder from the definition of propellant or explosive.
ReplyDeleteThese definitions can be convoluted and include repeated uses of "notwithstanding", "subject to section blah blah blah", and other legalese. I saw one where "firearm" excluded anything made before 1898 and/or replicas thereof and/or for which ammunition was not readily available, another loophole which you could drive a .30 cal Mauser C96 through without much effort.
All fun and games if you have deep pockets, a really sharp lawyer, or you can afford a stretch in the Grey Bar Hotel.
Mr. Miyagi said, "Best defense against punch, don't be there!"
It seems the Trial Lawyers will look for any weakness to circumvent PLCAA and blame anyone other that (or in addition to) the perpetrator.
ReplyDeleteThis incident could be an eye-opener.
Surely the 2nd Amendment applies to "muskets" ???
ReplyDeleteMa Deuce