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Old November 25, 2014, 11:56 AM   #1
TXAZ
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What happens when the 'bullet' isn't from a 'firearm'

We all have likely heard of the powerful pellet guns whose adverts show the hunter dropping a javelina in 1 shot. More recently, my neighbor built a small railgun, an electric gun that creates an intense magnetic field to shoot a ~1 cm cube through Sheetrock, only using electricity. He is looking to add more capacity to make it more powerful.

My reading of the legal definition (Texas) of a firearm is it requires a chemical propellant not present in either of these.

If one of these were used in an otherwise 'firearms' crime, is it still a crime? Seems like a major hole.
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Old November 25, 2014, 12:25 PM   #2
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Assault is still assault, murder is still murder, regardless of the tool used, if any.
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Old November 25, 2014, 12:31 PM   #3
boltomatic
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It depends on the state, but most states have laws to deal with non firearms.

When it comes to actual crimes like assault or murder, it doesn't really matter what you use.

Even in robberies or assaults, it usually does not matter what the gun is, what matters is what the victim perceives it to be. If you rob store with an airsoft gun that looks real, the charge is the same as if it was a real gun, as it should be.

The only time its going to make a difference is in less serious crimes. For example, if you get randomly searched and the police find an airsoft or BB gun on you, you are not going to be charged with possession of a firearm (except in some states like NJ). Its different however if you are invovled in the commission of a crime, in those cases it may be treated like a firearm.

The short story is, there is no "loophole". Classification may make a difference for what your charge is named, or your punishment for non-violent crimes, but for where it matters it doesn't really make a difference. Nor should it.
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Old November 25, 2014, 01:33 PM   #4
riflemen
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a cross bow doesnt isnt a firearm and if you use it to kill someone its still murder, lol..

This could be an issue, if someone made a gun that was deadly and looked like a firearm, capable of moving a projectile fast enough to be dangerous, built with the purpose to do so... I am sure there would be a low sanctioning and controlling its sales, transportation, transfer, and concealment. Plus said weapon would most likely be developed by the military before a civilian..

Last edited by Vanya; November 25, 2014 at 03:12 PM. Reason: removed snark.
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Old November 25, 2014, 01:52 PM   #5
chesterfield
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Wouldn't this fall into the "any other weapon" category?
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Old November 25, 2014, 02:08 PM   #6
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In New Jersey, and I'm sure as well as other repressive states, air guns are considered firearms. And you can assume that if you use something as a weapon, a savvy prosecutor will craft his charges accordingly.
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Old November 25, 2014, 04:14 PM   #7
carguychris
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Let's examine the NFA implications...

Quote:
Originally Posted by chesterfield
Wouldn't this fall into the "any other weapon" category?
If the propulsion is solely electromagnetic, IMHO clearly no. My emphasis in boldface:
Quote:
Originally Posted by 26 U.S. Code § 5845(e)
The term “any other weapon” means any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include any such weapon which may be readily restored to fire. Such term shall not include a pistol or a revolver having a rifled bore, or rifled bores, or weapons designed, made, or intended to be fired from the shoulder and not capable of firing fixed ammunition.
The first category expressly specifies that the propellant must be an explosive. The second category is a "pistol or revolver", which an electromagnetic rail gun clearly is not. The third category has "combination shotgun and rifle barrels", so this also clearly refers to a traditional firearm.

OTOH there IS a possibility that a rail gun could be categorized as a destructive device (DD) if it is constructed in a particular way:
Quote:
Originally Posted by 26 U.S. Code § 5845(f)
The term “destructive device” means:
(1) any explosive, incendiary, or poison gas
(A) bomb,
(B) grenade,
(C) rocket having a propellent charge of more than four ounces,
(D) missile having an explosive or incendiary charge of more than one-quarter ounce,
(E) mine, or
(F) similar device;
(2) any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes; and
(3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subparagraphs (1) and (2) and from which a destructive device may be readily assembled. The term “destructive device” shall not include any device which is neither designed nor redesigned for use as a weapon; any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to the provisions of section 4684 (2), 4685, or 4686 of title 10 of the United States Code; or any other device which the Secretary finds is not likely to be used as a weapon, or is an antique or is a rifle which the owner intends to use solely for sporting purposes.
Under subsection (1), if the rail gun projectile carries a "explosive, incendiary, or poison gas" charge, it could be considered a "similar device" to a "missile having an explosive or incendiary charge of more than one-quarter ounce"; however, this may only apply to the projectile, and not to the launcher itself. [This is not without precedent, as a live hand grenade is considered a DD, but the user's arm obviously is not. ]

Subsection (2) is clearly written to apply to devices invented after the NFA was enacted ("...any type of weapon by whatever name known..." that uses a non-specific "other propellant"). However, this provision ONLY applies if the device has at least one "barrel... which [has] a bore of more than one-half inch in diameter".

[EDIT TO ADD] Subcategory (3) specifically exempts a "device which is neither designed nor redesigned for use as a weapon"; however, it's not always clear where the line is drawn, and it can depend on the user's intent.

Previous vague guidance from the ATF has stated that >1/2"-bore potato cannons or spud guns are not considered firearms or DD's, provided that they are not used as weapons or loaded with explosive or incendiary projectiles. However, if someone were to threaten another person with one, all bets would be off. IOW it's somewhat of a legal gray area. YMMV and caveat emptor.
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Last edited by carguychris; November 26, 2014 at 09:11 AM. Reason: reword
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Old November 25, 2014, 07:28 PM   #8
DaleA
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"assault is assault, murder is murder" - I think the OP gets that...

Thanks carguychris for getting the codes out. I think the one you listed OTOH would make for some very interesting arguments in court.
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Old November 25, 2014, 07:40 PM   #9
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Thanks to CGC for posting up the actual regulations. And reading them again brings to mind a question I had not previosuly considered:

According the the NFPA (National Fire Protection Association, the folks who write all those codes and standards that line the wall of every fire marshal's office, black powder is classified as an explosive but smokeless powder is not; it's classified as a "propellant." Is there a definition in the BATFE regs to establish what constitutes an explosive? If it isn't defined in the regulation, then my understanding is that the regulation gets interpreted according to common usage. And the NFPA standards are about as authoritative as it gets with respect to things that burn or explode.

So is a modern pistol or rifle firing smokeless powder actually NOT a firearm?
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Old November 25, 2014, 10:40 PM   #10
TXAZ
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WoW CGC, that was impressive.
It was totally propelled by electromagnetism.
And I'd believe you are also correct with a "no" answer.
But I'd hate to be the test case on that one. Thanks again.
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Old November 25, 2014, 11:08 PM   #11
Nickel Plated
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The ATF, DOT, UN and many other agencies do consider smokeless powder a Division 1.3 explosive.
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Old November 26, 2014, 11:42 AM   #12
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Quote:
Assault is still assault, murder is still murder, regardless of the tool used, if any.
Yeppers.
I love how crooks think they can out-clever the law with off the wall schemes. I remember the guy who designed built & SCUBA tank powered golf ball cannon from PVC. He even made it a take down so it would fit in a panel van.
The "Brilliant scheme" was to hide the 11' long monstrosity in a panel van, assemble & slide the "muzzle" out the back & fire a deadly-fast golf ball at his intended victim, a golf fanatic. It was supposed to look like a "Tragic golfing accident" & the PVC was supposed to be thrown into a trash barrel burn "to hide the evidence". He even bodged together a telescopic sight mount for it.

Sadly PVC in a confined space is quite dangerous when you suddenly apply 2475 PSI to it.
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Old November 26, 2014, 03:20 PM   #13
carguychris
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Quote:
Originally Posted by wogpotter
Sadly PVC in a confined space is quite dangerous when you suddenly apply 2475 PSI to it.
Sadly for whom?

IMHO this is a perfect example of something that would be considered a "destructive device" under the NFA, as it had a bore exceeding 1/2" and was intended to be a weapon, even though it was (shoddily!) built from household materials.
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Old November 26, 2014, 03:46 PM   #14
wogpotter
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Probably the guy with the bucket & sponge cleaning the rental for the next customer.

I honestly don't know how it would be classified in the UK. At the time no airgun registration existed & there is no such class there.
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Old November 27, 2014, 11:24 PM   #15
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It's academic really, rail guns require a lot of electric power so I doubt anyone will be carrying one to town attached to a veeeeerrrrry long extension cord.
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