lack of serial number

[hartcreek]

A friend dropped off a H&R 922 that was not working right. This gun came from a relative of his son inlaws that is now dead. The owner had a heart attack out on pond ice recently.

This 922 was clearly built before 1968 so it is not required to have a serial number. I can not see grind marks where the serial number is supposed to be stamped but this gun sat in something on purpose or by accident and blueing is missing from half the cylinder and it shows acid like marks like someone had left it in something that a normal gun owner would not have left it in. Non gun people just do not think.

I already have contacted my friend but since this 922 clearly predates the law dictating serial numbers by twenty years I am wondering about the possible consequences of not turning this 922 in to the sheriffs office and instead ordering the broken spring and fixing it and returning it to the owner since it was not required to have a number in the first place.

What do you all think?

[44 AMP]

As I understand it, and I'm not a lawyer so this is worth what you are paying for it...

This 922 was clearly built before 1968 so it is not required to have a serial number.

yes and no. The 68 law requires all guns made after 68 to have serial numbers. True. However, it also requires serial numbers on all guns made before 1968, IF THEY HAD SERIAL NUMBERS WHEN MADE.

This is a vital point. Any gun made with a serial number must have that number legible (not defaced or removed) or it isn't legal. The law allows for remarking guns under certain conditions, but if the original factory number has been ground, filed, acid etched, punch stippled, or any other means of obscuring the number, it is in violation of the law, AND the law applied to the possessor of the gun. If you come into possession of a gun that should have a serial number and does not, your only legal option is to turn it in, immediately. Otherwise, you ARE guilty, and you will be so found in court.

Doesn't matter who removed the serial # or when, once done, NO ONE may legally possess the gun. I do not know of any exception.

Now, lots of pre-68 guns were made without serial #s. Mostly the budget class of guns. They are grandfathered, and totally legal, and a number is not required by law to be added. Such a gun can be bought, sold, repaired and returned, all under the law, and in the block for ser# on the paperwork "no serial number" is entered.

since this 922 clearly predates the law dictating serial numbers by twenty years...

How do you know this? (any sort of reasonable proof will do) Some guns are obvious, models discontinued before 68 clearly.

If the gun in question has no finish damage where the serial # should be, then I would assume, and accept it being pre 68 but if that area is disturbed in some way, they it becomes a judgment call, and I would not risk trouble over an old, broken bargain gun.

[gyvel]

H&R placed serial numbers in several places at various times.

On the bottom of the grip;
Under the grips;
On the bottom of the trigger guard;
On the rear face of the cylinder.

Check in all those places for numbers or evidence of removal. (Especially careful removal and polishing of the above mentioned areas.)

To the best of my knowledge, H&R has ALWAYS applied serial numbers to their revolvers; Proceed with caution.

If you do decide to turn it in to the local sheriff, you need to turn in ONLY the frame. The rest of the parts (including the barrel) can be useful for someone else to repair a similar H&R.

In fact, if you do turn it in, I would be interested in getting those parts from you as I repair Iver Johnsons and H&Rs for therapy.

[hartcreek]

Thank you gyval the cylinder is numbered 195 on the face that the bullets sit in and the cylinder on the side has PAT.1904730.

This gun has a one piece grip and the grip screw is not on the side of the grip but in the edge. I can not get the screw to budge but maybe if I get some penetrating oil and a better screwdriver I can get this one piece grip removed.

Hopefully there is a number under the grip

gyval since you work on these I need your help on one of mine. I am having one heck of a time identifying which model of H&R Premier 32 S&W I have so I can order the proper springs from Numrich. I know this is a black powder gun. I ordered the hammer spring 268400D to replace the original flat spring but 268400D is at least 5/8 of an inch short. I now need to order more springs but identifying the right ones seems to be a problem.

[gyvel]

If that is a "small frame" Premier .32, I'm guessing you need #268290G. Numrich lists more than one Premier. Any chance for a photo? You can PM if you want.

[hartcreek]

yes gyval I can take some photos and PM them to you. I would really appreciate your help determining which model this is so I can purchase all new springs so I can get it functional. I have a newer model with coil springs but I like functional antiques.....just in case.

[Frank Ettin]

Originally Posted by hartcreek

...This 922 was clearly built before 1968 so it is not required to have a serial number....

That is not entirely accurate.

Originally Posted by 44 AMP

...Any gun made with a serial number must have that number legible (not defaced or removed) or it isn't legal....

That is accurate.

Under 18 USC 922(k):

(k) It shall be unlawful for any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered or to possess or receive any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.

So if the manufacturer of a gun originally serial numbered the gun and if that serial number has been "removed, obliterated, or altered", possession of that gun is a federal crime.

And if what gyvel wrote:

Originally Posted by gyvel

...H&R has ALWAYS applied serial numbers to their revolvers....

unless the OP can confirm that one of the numbers he sees on the gun is actually the serial number placed by the manufacturer when it was made, or otherwise finds a legible serial number, he has some serious problems.

[rkbanet]

All H&R 922 revolvers should have a serial number.

[JimPage]

Hatcreek: some one has a conundrum. I have no advice, but I would make it someone else's problem.

[hartcreek]

Right now the grip screw is soaking and I hope I can get the single grip off and there is a number under the grip.

The problem with the statute that you posted Frank is that there is no commerce involved.

[K_Mac]

The statute is very inclusive and clear. Possession is illegal. There is no wiggle room. Having one is illegal. Anything else is just details.

[Frank Ettin]

Originally Posted by hartcreek

...The problem with the statute that you posted Frank is that there is no commerce involved.

Wrong. Read it again (emphasis added):

(k) It shall be unlawful for any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered or to possess or receive any firearm which has had the importer’s or manufacturer’s serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.

A gun comes under the statute if it was ever, at anytime since it was made, been shipped or transported in interstate commerce.

And the courts have viewed the interstate commerce criterion broadly. I haven't seen an appeal of a conviction for possession of a gun with a defaced serial number appealed based on the interstate commerce language (but convictions have been appealed on other grounds and upheld). However similar language is found in 18 USC 922(g) makes it unlawful for certain classes of persons (e. g., convicted felons, unlawful drug users, etc.):

...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.

And here's what the courts have said about that:

1. In U.S. v. Chesney, 86 F.3d 564 (C.A.6 (Tenn.), 1996), the Sixth Circuit affirmed, against a Commerce Clause challenge Chesney's conviction for being a felon in possession of a firearm.
   
   In rejecting Chesney's assertion that the 18 USC 922(g) is unconstitutional, the court of appeal noted, at 568 -- 569:

   ...another panel of this court has held § 922(g)(1) to be constitutional. In United States v. Turner, 77 F.3d 887 (6th Cir.1996), a unanimous panel held that " § 922(g)(1) represents a valid exercise of legislative power under the Commerce Clause." Id. at 889. As this court wrote in Turner, "Every court of appeals that has been faced with this question since Lopez has held that the jurisdictional element of § 922(g) provides the requisite nexus with interstate commerce ....

   In rejecting Chesney's assertion that the statute can not be applied in his case, the court of appeal noted, at 570 -- 571:

   ...Chesney, unlike the defendant in Turner, also challenges § 922(g)(1) as applied to him by arguing that his conviction is unconstitutional because the government failed to prove any "substantial nexus between the crime charged and interstate commerce." Chesney stipulated that the gun had moved in interstate commerce, and such a stipulation is sufficient evidence to support Chesney's conviction pursuant to § 922(g)(1). See United States v. Lee, 72 F.3d 55, 58 (7th Cir.1995) (stipulation that gun was in or affecting commerce sufficient evidence to support a conviction under § 922(g)(1)). ...
   
   The Supreme Court has held that proof that a firearm moved in interstate commerce at any time is sufficient to meet the government's burden of proving the "in commerce or affecting commerce" element of § 1202(a), the predecessor to § 922(g)(1). Scarborough v. United States, 431 U.S. 563, 566-67, 97 S.Ct. 1963, 1964-65, 52 L.Ed.2d 582 (1977). Although Scarborough was decided as a matter of statutory construction, the Court noted that Congress knew how to assert " 'its full Commerce Clause power so as to cover all activity substantially affecting interstate commerce,' " and that Congress intended to exercise the full extent of its Commerce Clause power when enacting § 1202(a). Id. at 571-72, 97 S.Ct. at 1967-68 ...
   
   All of the courts of appeals to consider the issue since Lopez have concluded that § 922(g)(1), as construed to require only the minimum nexus to commerce approved in Scarborough, is constitutional. See, e.g., McAllister, 77 F.3d at 390; Sorrentino, 72 F.3d at 296; Shelton, 66 F.3d at 992; Hanna, 55 F.3d at 1462 n. 2.,...

2. In U.S. v. Singletary, 268 F.3d 196 (3rd Cir., 2001), the Third Circuit affirmed a conviction for being a felon in possession against an attack on the constitutionality of 922(g), at 197:

   ...Singletary contends that the felon-in-possession statute is unconstitutional because the conduct it proscribes -- the intrastate possession of a firearm -- does not have a substantial effect upon interstate commerce, and thus does not constitute a valid exercise of Congress' authority under the Commerce Clause. Specifically,...

   In rejected Singletary's assertion, the court of appeal noted, at 200:

   ...the Court in Scarborough v. United States had the opportunity to address squarely "whether proof that the possessed firearm previously traveled in interstate commerce is sufficient to satisfy the statutorily required nexus between the possession of a firearm by a convicted felon and commerce." 431 U.S. 563, 564 (1977). The Court accepted the Government's contention that it only need prove that "the firearm possessed by the convicted felon traveled at some time in interstate commerce." Id. at 568. Thus, the Scarborough Court established the proposition that the transport of a weapon in interstate commerce, however remote in the distant past, gives its present intrastate possession a sufficient nexus to interstate commerce to fall within the ambit of the statute. Because S 1202(a) is the predecessor to the current felon-in-possession statute, this statutory construction applies equally to S 922(g)(1)....

3. In United States v. Hoyle, 697 F.3d 1158 (10th Cir., 2012), the Tenth Circuit affirmed Hoyle's conviction for being a felon in possession. In doing so the court of appeal noted, at 1165:

   ... “Section 922(g) requires that the firearm be possessed ‘in or affecting commerce.’” United States v. Williams, 403 F.3d 1188, 1195 (10th Cir.2005) (quoting 18 U.S.C. § 922(g)). The Supreme Court has affirmed the Fourth Circuit's holding that: “[T]he interstate commerce nexus requirement of the possession offense was satisfied by proof that the firearm [defendant] possessed had previously traveled in interstate commerce.” Scarborough v. United States, 431 U.S. 563, 566, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977)...

So in, in fact, the revolver in your possession has had its serial number removed, your possession of it is a serious federal crime.

[44 AMP]

The problem with the statute that you posted Frank is that there is no commerce involved.

Frank gave you chapter and verse of the law, here's the operative point to me, ANYTHING you buy that was made in someplace other than where you are has moved in intrastate commerce.

Factory to distributor, or in the old days direct to the hardware store, it crosses state lines, so it qualifies. I have even heard it argued that if the raw materials the gun was made of crossed state lines on their way to the factory, it has moved in intrastate commerce.

the "commerce" portion of the law is essentially a boilerplate section, and since virtually anything can be put in that class easily it is of no practical matter. Just assume its covered under the clause and move on.

Whether by design or accident, if the gun HAD a serial number and now does not, it must be surrendered to the authorities, mere possession is a federal crime.

Originally Posted by gyvel
...H&R has ALWAYS applied serial numbers to their revolvers....

I don't personally know if this is correct, but gyvel usually has good info, and even if he's wrong in this particular case, you would have to prove (somehow) that the gun in question was made without a serial number, prior to 1968, and I have no idea how one would do that with an H&R revolver.

Best advice I can give you (beyond seeking a real lawyer and following their advice) would be to surrender the gun. If they decide the gun is exempt, they should give it back. If not, voluntary surrender goes a long way towards establishing you did not intend to break the law.

You've been given our best advice, I see nothing further to discuss in a public forum.

[James K]

No argument with any of the above, but the "interstate commerce" business is not boilerplate - it is one of two parts that provide justification for a federal law. The Federal government, under the Constitution, cannot make laws affecting the citizens of a state, with two exceptions - it can regulate interstate commerce, and it can collect taxes.

Those were the whole basis for federal interference in the traffic in guns (and the civil rights laws, auto safety laws, etc., etc. The original NFA and FFA were gun control disguised as tax laws. The NFA would not have been constitutional if guns didn't move in interstate commerce and if the transfer fee had not been called a tax. Same with the dealer licensing (a tax) under the FFA.

Of course we know that when the politicians want a federal law, they manage to get one, Constitution or not, but they always justify it using one of those two concepts. (The Civil Rights laws ban discrimination in restaurants using the claim that minority folks who travel interstate need a place to eat. The Supreme Court OK'd an Obamcare fee by ruling that it was a tax. The Lindbergh law justifies federal intervention in kidnapping on the basis that after a certain time, the kidnapper is assumed to have crossed a state line; they don't have to show that he did, only that he might have.)

Jim

[gyvel]

Frank gave you chapter and verse of the law, here's the operative point to me, ANYTHING you buy that was made in someplace other than where you are has moved in intrastate commerce.

You mean interstate, not intrastate.

Given that some are sticklers for the letter of the law, I am going to assume that, had that revolver never left the state of Massachusetts, and you could somehow prove it, that it would be exempt from the serial number law.

Very far fetched? Yes, but possible maybe?

[Frank Ettin]

Originally Posted by gyvel

...Given that some are sticklers for the letter of the law, I am going to assume that, had that revolver never left the state of Massachusetts, and you could somehow prove it, that it would be exempt from the serial number law....

You can't assume anything. Unless a court has so ruled, you're still on shaky ground. There are a variety of ways something can move "in interstate commerce."

[hartcreek]

My bad luck.....this 922 does not have a second serial number stamped in the frame so it is going to be parts with the part that was supposed to be serialized turned in to the local sheriffs department.

The parts have already been spoken for so this thread can be closed.

[Spats McGee]

Per hartcreek's request, I'll close this one.

ETA: Re-opened per OP request.

[Spats McGee]

Originally Posted by gyvel

Given that some are sticklers for the letter of the law, I am going to assume that, had that revolver never left the state of Massachusetts, and you could somehow prove it, that it would be exempt from the serial number law.

Given the expansion of legislation under the Commerce Clause in the last century or so, I'd call that an extremely dangerous assumption. To be honest, I would assume the opposite. Even if an item has not, itself, moved in interstate commerce, there's a pretty good chance it has "affected" interstate commerce, and is thus subject to federal regulation. (I'm pre-coffee right now, so please forgive me for not quoting caselaw.)

[44 AMP]

Even if an item has not, itself, moved in interstate commerce, there's a pretty good chance it has "affected" interstate commerce, and is thus subject to federal regulation.

I don't recall the case name (and will leave it to you to look it up, Wickard?? maybe??)

Wheat that wasn't sold, but kept by the growers was ruled to have affected interstate commerce.

Best approach, figure everything either moves in, or affects interstate commerce under the current interpretation of the law.

Grow tomatoes in your window box, only for your own personal use, and if the govt. thought it worthwhile, they could build a case to exert their authority over them, under the current interpretation of the law.

(am not a lawyer, but I believe this is correct)

[Spats McGee]

Yes, that's the case. I think it was Wickard v. Filburn.

[hartcreek]

I figured an update was needed.

I dropped the frame off at my county sheriff department main office on Monday. I handed the frame to the uniformed officer manning the counter and she gave me a blank look then asked why are you turning this in. She had it in her hand so I said look at the serial number. Another blank look followed and I said "inside the grip see the serial number has been obliterated." Another blank look from her so I explained that it was a federal felony to remove the serial number and by federal law it had to be turned in. Oh was her reply. She then asked for my name and phone number and wrote them both on a post it note for the detective in case he needed to contact me.

She did not even ask for identification......good grief. I expected that I would have to fill out some form as a minimum. If this is how my local sheriff department acts when they recieve what is obviously a crime gun I really have to wonder how the rest of the department is run.

[Aguila Blanca]

Deleted by Aguila Blanca -- remedial reading class begins in April.

[kraigwy]

Careful here:

I was contacted by the DA, regarding a case where someone was being charged for possession of a firearm that "had the serial number removed". They wanted me to see if I could bring back the serial number. Which is possible in many cases.

I got the gun only to find out that it was a Remington Model 721. Most Model 721s don't have serial numbers. I've only seen one that doesn't.

I explained this to the DA telling him he needs to dismiss the charges, when did happen and the rifle was returned to its owner.

DA's, Prosecutors and most lawyers don't know diddlie squat about guns.

I have several older guns without serial numbers, A model 721 is one, a Savage 24D is another. They didn't come from the factory with serial numbers and are perfectly legal. Even, as in the case of the 721 some did have serial numbers.

Another problem the same serial number may be used on multiple guns.

The Mauser comes to mind. I was contacted by a defense attorney because his client was being charged possession of a stolen firearm. The client swore that the rifle in question was given to him by his father who brought it back from WWII.

I don't know if the story of the bring back was true, but I do know Mauser's may in fact have duplicate serial numbers.

When the Army contract with different companies to build guns, they issue them a block of serial numbers to use.

Often Germany didn't. The contracted with companies to build mauser and they (not always) came up with their own serial numbers.

I presented my findings to the DA and again the case was dismissed.

The above two cases may be rare, but they do occur. If pays to find an expert before caving.

I don't mean a gun nut, I mean an person that has been Accepted as an Expert in your court system. That takes a bit to do, as you're raked over the coals by the defense and DAs, to get the Court to recognize one as an expert.

If you run into problems, FIND ONE because as I said, DAs, prosecutors and most lawyers don't know.

[Aguila Blanca]

Originally Posted by kraigwy

The above two cases may be rare, but they do occur. If pays to find an expert before caving.

If I remember correctly, there was a block of duplicate serial numbers assigned to M1911A1s during WW2. I don't recall where the overlap occurred -- maybe Colt and Remington-Rand?

And, of course, everyone knows that ALL M1911A1s are "Colts" -- even if they were made by Remington-Rand, United Switch and Signal, or even Argentina.