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Discussion in 'Firearm Laws & Legal' started by ditchtiger, Mar 18, 2016.
How does SB941 come into play with an antique?
If I know things right, and I may not, If its made before 1899 it is not considered a firearm.
Antique firearms are certainly still exempt for the acts which SB941 amended, via ORS 166.460. The question is, does ORS 166.460 apply to new provisions of the act?
That might require expert consideration. You'll notice SB941 does amend ORS 166.460, but it does not expand the exemption to cover its new provisions. So no explicit exemption.*
Of course, the statutes which provide the framework for the background check (ORS 166.434) do not apply to antiques. So a hypothetical "antique background check" would be undefined - legally the state could not collect a $10 fee, and OSP would have no clear legislative basis to conduct the check!
This is true for federal law under 18 U.S.C. 921. However, only certain statutes of Oregon law exempt federally-antique firearms, as described in ORS 166.460. For example, Oregon prohibits possession by the insane, even for antique firearms.
Anyway, my (reluctant) speculation is the new sections of SB 941 do apply to antique firearms, but since the act neglects to apply ORS 166.434 to antique firearms, it's not legally possible to transfer one. Hence a Conflict of Laws.
*Curiously, SB941 does allow transfers "as provided in" ORS 166.438. And antique firearms were exempt under 166.438. So a thin case might be made for non-BGC antique transfers at gun shows.
(2) Except as provided in ORS 166.436 and 166.438 and subsection (4) of this section, a transferor may not transfer a firearm to a transferee unless the transfer is completed through a gun dealer as described in subsection (3) of this section
(FYI, this question was posed earlier and not answered, see link below.)
I figured this would be a grey area question. So what gov. agency would I ask? Just hoping for an exemption to get more value for a gun sale.
You might start with OSP. Legally, they're only authorized to do background checks for non-antiques (ORS 166.412). And their whole process would be incompatible with antiques, where there is often no serial number. Collect a written response if possible.
FICS Instant Check (And Stolen Gun Checks) 1-800-432-5059 (For FFL Dealers and Private Party transfers)
Challenge/Information line (for denied, delayed transactions or inquiries) 503-373-1808
FICS Unit Manager 503-934-2330
FICS Unit Supervisor 503-934-2364
OSP Firearms Instant Check Fax 503-370-8584
This is just speculation, but trying to enforce SB941 transfers for antiques would lead to some fairly inane scenarios. For example, since SB941 exempts FFLs, I could sell a muzzleloader to a dealer, who could sell it to my neighbor, all without any BGC or records. The process could even occur without the physical presence of the dealer! For example, I might sell the muzzleloader to the remote dealer over the phone, hand it to my buyer, who would then buy it from the remote dealer over the phone, again without records or background check.
If OSP does not give an opinion, maybe @bolus has some ideas based on his collector grey area research.
Maybe I'll just sell it and look up into the sky like nothing happened.
This is an M39 with an 1897 stamped receiver. Is still a good shooter. I would not stand in front of it at 300 yards. Or 500 yards if I was the shooter. But then If I could shoot at 500 and then be there at 500 to get the bullet that would be one heck of a trick. Anyway, anyone interested in a straight across sale, find an answer.
me, as not a lawyer, would say that if the FBI does not do background checks on Antique firearms then no one at OSP would have a way to submit the NICS check anyway. Like trying to do a background check on a screwdriver.
So me personally would not have any concern buying or selling something considered an antique firearm where the there would be no need for a background check in any state
In general, dont ask OSP questions. They know less than us. Quite a bit less than us. After 12 calls I gave up on them. The only person person that helped was Betsy Johnson getting the Legislative counsel to answer about C&R firearms.
It's probably been 10 or more years ago (so take it for what it's worth) but I purchased my first Mosin from Sportsman's Guide. It was a pre 1899 and was delivered right to my door, no mus no fuss.
Times have changed.
I know times have changed, that's why I added "take it for what it's worth".
I found the above true when I called OSP!
This happened BEFORE 941 took affect last year. I had a couple of replica cap & ball pistols I was selling for a neighbor. I called OSP and was handed to the "Fire Arms Unit" to get an answer about a background check. Their question to me was: "Were the pistols manufactured before 1900?". My answer was "Yes". His reply was, "Needs a background check".
I have also been led to believe there are three designations...
Modern Firearms. C & R Firearms, and "Antique Firearms".
These useful idiots certainly didn't write a law that people could understand!
2-3 of my calls went to people at OSP in the firearms unit who did not now what a "C&R firearm" was. They had never heard the term before.
The Oregon based ATF agents were more knowledgeable but also had no idea how to interpret the law.
The best way to answer a firearm law question is to ask a lawyer well versed in firearm law.
A firearm is still a firearm, regardless of being an antique or not. Just ask any felon who thought he could carry a concealed black powder revolver because it was not a firearm.
All the definition of Antique under the federal firearm law does is eliminate the need for a 4473 and NICS check when sold by a licensed FFL dealer. The new laws in OR and WA may negate that entirely. In WA, the C&R FFL 03 license now seems to be null and void, your C&R rifle that would have been delivered to your door now needs to go through a licensed FFL, according to some.
Just to be clear, in my replies I am using the definition of "antique" as in 18 U.S.C. 921.
Remember this includes modern muzzleloader replicas. Some of those replicas could have serial numbers. Most likely, a misguided person could submit a BGC to OSP for one, and get it successfully processed.
Technically however, such a BGC would be illegal in Oregon. OSP is only authorized to conduct BGCs for federally-defined firearms (defined as 18 USC 921). This is explicitly codified in Oregon law under 166.460 and 166.412.
18 USC 921
(16) The term "antique firearm" means -
(A) any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898; or
(B) any replica of any firearm described in subparagraph (A) if such replica -
(i) is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or
(ii) uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or
(C) any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition. For purposes of this subparagraph, the term "antique firearm" shall not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof.