Black powder and antique laws.

[Tenhoff]

I'm interested in getting an 1858remington new army .44, I heard that replica models of guns made before a certain date (1895 I think?) are not considered firearms. If it doesn't qualify as a traditional firearm, does that mean I can buy one under 21? I'm 19 now.

http://www.cabelas.com/catalog/product.jsp?productId=731695

 

[Chaunsey]

as far as i know, yes, you can buy one once you're 18, BP firearms are not regulated at all, and you can order them on the internet straight to your house.

 

[SigMatt]

Pre-1899 breech loading are considered antiques and not legally a firearm under Federal law. Applies to metallic and breech loading firearms using either black powder or smokeless. For black powder, only muzzleloading is unregulated. Cash and carry, order through the mail, have a ball. But if it a modern replica black powder breechloader, it is legally a firearm and must go through a dealer.

Just a clarification. An original Spencer breechloader is an antique, a modern replica of the same is a firearm even though both are black powder.

Matt

 

[ThatIsAFact]

Pre-1899 breech loading are considered antiques and not legally a firearm under Federal law. Applies to metallic and breech loading firearms using either black powder or smokeless. For black powder, only muzzleloading is unregulated. Cash and carry, order through the mail, have a ball. But if it a modern replica black powder breechloader, it is legally a firearm and must go through a dealer.

Just a clarification. An original Spencer breechloader is an antique, a modern replica of the same is a firearm even though both are black powder.

Matt

I agree that the replica of the 1858 Remington revolver that the OP is asking about is unrestricted under both federal law and state law. I think I agree with the thrust of what you wrote, but it is a little more complicated than that. The federal law and the Maryland law now have different definitions of "antique," so it is a good idea to look at both.

There are three different classes of guns that fall within the current federal definition of "antique." Here's the language from 18 U.S.C. Sec. 922:

(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. ​

So, a black powder muzzle loader, with certain exceptions, is not a "firearm" as that term is used for purposes of the federal Gun Control Act and its various amendments, and is not subject to all of the federal restrictions that apply to interstate transfers of a "firearm," purchase of a "firearm," etc.

Maryland law contains a narrower definition. The Maryland definition of "antique," found at Criminal Law Article §4-201, was apparently copied from an older, shorter version of the federal definition. The Maryland definition reads:

(b) Antique firearm. -- "Antique firearm" means:

(1) a firearm, including a firearm with a matchlock, flintlock, percussion cap, or similar ignition system, manufactured before 1899; or

(2) a replica of a firearm described in item (1) of this subsection that: (i) is not designed or redesigned to use rimfire or conventional centerfire fixed ammunition; or (ii) uses rimfire or conventional centerfire fixed ammunition that is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade.​

So you see, the Maryland definition contains no reference to muzzleloading capacity, nor any reference to any kind of gun powder. The Maryland definition would apply to a "replica" of a pre-1899 firearm that does not use fixed ammunition, which would cover many black powder guns, but perhaps not all. It certainly does cover the replica that the OP is asking about.

If the gun falls within the Maryland definition of "antique" then it is not regulated for transfer purposes. However, there are several other Maryland statutes that explicitly do cover antique guns for the purpose of penalties that apply to use of a "firearm" in certain crimes. For example, Criminal Law Article §4-204 makes it a separate crime to use a "firearm" in the commission of "a crime of violence," and explicitly says that "firearm" (for the purpose of this particular statute) "includes an antique firearm, handgun, rifle, shotgun, short-barreled rifle, short-barreled shotgun, starter gun, or any other firearm, whether loaded or unloaded." The penalty is 5 to 20 years per offense.

Regarding your Spencer example: You will note that in theory, a breech-loading, cartridge-firing replica of a pre-1899 gun could be manufactured today and still qualify as an "antique," under both federal and state law, if it "uses rimfire or conventional centerfire fixed ammunition that is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade." I am not exactly sure how "ordinary channels of commercial trade" might be construed in the Internet age, but I'm pretty sure that it is not sufficient for the ammo to be currently unavailable at Bass Pro.

This is not legal advice and I am not a lawyer.

 

[ThatIsAFact]

If it doesn't qualify as a traditional firearm, does that mean I can buy one under 21? I'm 19 now.http://www.cabelas.com/catalog/product.jsp?productId=731695

Regarding purchase, there is no federal law against it -- it is not a "firearm" or a "handgun" as defined in federal law. I cannot find any state law against it. You might check the ordinances in effect in your county.

If you buy it and transport it in a vehicle, however, I recommend that you remove the cylinder, encase the revolver, and store the cylinder separately. Don't have any caps on the nipples, either. Otherwise you may have the opportunity to try to explain the complexities of the law pertaining to muzzleloaders to a law enforcement officer, who is probably going to be pretty skeptical of any assertion that it is not a "firearm."

Don't carry it on your person except at the range, while hunting, etc., because even though it is not considered a "firearm," it qualifies as a "deadly weapon" under Maryland law.

 

[SigMatt]

Regarding your Spencer example: You will note that in theory, a breech-loading, cartridge-firing replica of a pre-1899 gun could be manufactured today and still qualify as an "antique," under both federal and state law, if it "uses rimfire or conventional centerfire fixed ammunition that is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade." I am not exactly sure how "ordinary channels of commercial trade" might be construed in the Internet age, but I'm pretty sure that it is not sufficient for the ammo to be currently unavailable at Bass Pro.

ThatIsAFact, very useful post! Thanks. I was trying to be short and not get into the intricacies you lay out.

I think the "ordinary channels of trade" is an area I wouldn't want to play in with regard to transfers. I brought up the Spencer example as I was looking at one and the replica required an FFL. There are specialty shops who made loaded ammo for it. Same applies for a lot of antique guns so the only real definition I am using is the pre-1899, which is one of the few absolutes in the law at both levels. No one can argue a marked 1891 Gew 88 is an "antique" regardless of what it fires.

I've had dealers refuse to sell clearly marked pre-1899 rifles as antiques since they argued they fired modern ammunition (7.65mm Argentine, 8x57mm Mauser and 6.5x55mm Swedish). The law doesn't require that as it falls under the pre-1899 definition and not the "no longer commercially available ammo" definition.

I have quite a few antiques. I've become quite fond of collecting them, especially turn-of-the-century Mausers.

Matt

 

[ThatIsAFact]

I've had dealers refuse to sell clearly marked pre-1899 rifles as antiques since they argued they fired modern ammunition (7.65mm Argentine, 8x57mm Mauser and 6.5x55mm Swedish). The law doesn't require that as it falls under the pre-1899 definition and not the "no longer commercially available ammo" definition.

I had a similar argument with an FFL, who asserted that he and other FFLs had been told by Maryland State Police personnel, in years past, that pre-1899 handguns are regulated and subject to transfer requirements if they fire cartridges. I do not dispute that somebody at MSP may have said this, but if so, that officer was confused about the law, because it is certainly clear under both the federal law and the state law that a handgun (or a long gun) is an antique and unrestricted if it was manufactured pre-1899, no matter what kind of ammunition it fires (and this applies even if the firearm was later modified).

However, this does not apply to guns covered by the National Firearms Act, the 1934 federal law that governs machine guns, short-barreled rifles, short-barreled shotguns, and other types of weapons listed in the NFA. The listed types of guns are covered by the NFA, if they fire cartridges, no matter when they were manufactured, unless either (1) the gun was made pre-1899 and also fires "ammunition is no longer manufactured in the United States and is not readily available in the ordinary channels of commercial trade," or (2) the model of gun has been specifically exempted by the ATF as a weapon of interest primarily to collectors.

 

[Tenhoff]

Thanks, now right now I'm staying in pa, I understabd that you can carry openly at 18? Would I still have to treat it like a handgun? Or am I allowed to keep it in my car whenever I want? (unloaded in a case)