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Old 09-23-2019, 03:36 PM
HurricaneDitka is offline
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NY AG threatening companies for selling "ghost guns". Isn't this perfectly legal in NY?


Here is the story:

Quote:
NEW YORK -- State Attorney General Letitia James announced today that she has ordered 16 websites to immediately stop selling “ghost guns” - kits of firearms components that allow buyers to assembly of assault weapons.

The possession, manufacture and sale of assault weapons is illegal in New York, but these companies have been providing the means to violate the state’s assault weapons ban, James said in an news release.

“These companies sell nearly complete, untraceable ‘ghost guns’ that allow individuals to create assault weapons, which are illegal in New York and endanger everyone in our state,” James said on Twitter this morning. “We won’t allow them to be built here.” ...
Here is the actual 'cease and desist' letter.

My understanding is that it's perfectly lawful for a NY resident to acquire materials / components / parts and build their own rifle, even one based on an AR-15 lower receiver, so long as you don't run afoul of the SAFE Act or various other pieces of gun control. Sure, the end result is a goofy-looking thing, but it's legal, isn't it?

Why is the AG demanding that these companies stop selling legal items to NY residents?

Is she going to get reamed out by these companies' lawyers? Or is she on firm legal ground here?
  #2  
Old 09-23-2019, 03:42 PM
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IANAL, and I really can't comment on whether it's legal or not, but it seems perfectly fair to say that forbidding people from owning a certain thing also means banning them the components to have that thing.

Imagine if North Korea said, "We're not violating UN bans on nuclear proliferation by selling Syria all the components needed to assemble a nuclear weapon, since it's not an outright nuke itself."
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Old 09-23-2019, 03:49 PM
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But the "components to have that thing" can also be assembled into firearms that are perfectly legal to own in New York. As a hypothetical, imagine that a state wanted to ban a certain 4-door pickup truck. There's a two-door model that's still perfectly legal. Is someone guilty of possessing "the components to have that thing" (the 4-door pickup truck) if they've got a rear axle that is used on both the 2-door and 4-door model?
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Old 09-23-2019, 03:59 PM
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Mens rea. From the article cited:

Quote:
James said the companies often specifically advertise their products as a way to evade law enforcement with phrases like, “if they don’t know you have it, they can’t take it."

<snip>

Aside from a fully assembled firearm, the lower receiver is the only piece that is independently considered a firearm and is thus subject to federal regulation. However, an incomplete lower receiver — lacking certain holes, slots or cavities — is not considered a firearm, James said.

These companies have been marketing their lower receivers as “80%” complete, in order to evade federal regulations, she said.

Purchasers on these websites must only make a few small changes with a common drill press to transform an unfinished receiver into a fully operational one. Once milled, the receiver may be readily assembled into an illegal assault weapon, typically unregistered and not branded with a serial number.

These companies call their products “ghost guns” because they are virtually untraceable. They do not require that the buyer hold a federal firearms license or submit to a background check.

Many of these sellers also offer for sale specialized jigs — or stencil-like precision tools that help guide a drill press — that are specifically designed to aid the milling process for a lower receiver.
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Old 09-23-2019, 03:59 PM
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Originally Posted by HurricaneDitka View Post
But the "components to have that thing" can also be assembled into firearms that are perfectly legal to own in New York. As a hypothetical, imagine that a state wanted to ban a certain 4-door pickup truck. There's a two-door model that's still perfectly legal. Is someone guilty of possessing "the components to have that thing" (the 4-door pickup truck) if they've got a rear axle that is used on both the 2-door and 4-door model?
Selling the common part would be probably be legal. But selling it as a kit that makes the illegal thing, that is the problem. Even if every part in the kit is used in a legal gun, selling the kit that makes the illegal device is still illegal.

Radar jammers are illegal in many states. Someone could build one out of off the shelf components. Each component is legal, but if you sold a kit with just the components and either include instructions or point to instructions, you are selling the illegal item.
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Old 09-23-2019, 04:10 PM
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What does "mens rea" have to do with it? It's perfectly legal for NY residents to acquire a block of aluminum, mill it out, add an upper receiver, stock, trigger group, buffer tube, etc and turn those components into a firearm that is legal for them to possess in New York (at least, AFAIK). It's certainly technically possible (and highly illegal) to use some of those same components, along with some different ones, to turn the same block of aluminum and various other components into an illegal machine gun or assault weapon. That doesn't mean that the person / company selling the buffer tube, or rear sight, or whatever other component has any intention of aiding people in building machine guns or assault weapons or doing anything else illegal. Their intention is to assist people to build legal rifles. Someone may misuse their component to do something illegal with it, but that's not the fault of the manufacturer or seller.
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Old 09-23-2019, 04:13 PM
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Seems like a conflict between federal and state law, with the NY interpretation being more restrictive. Whether the NY law runs afoul of the Constitution is for the courts.

The fact that the items are not firearms may actually make it easier for NY to ban them. By not being firearms, they don't get the same protections and the state has more leeway in what steps they take to restrict them.

It's clear the feds do not consider unfinished blanks to be firearms.

https://www.atf.gov/qa-category/receiver-blanks

"Ghost gun" is a term a congressmen from my state came up with, in all of his ignorant glory.
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Old 09-23-2019, 04:16 PM
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Originally Posted by Strassia View Post
Selling the common part would be probably be legal. But selling it as a kit that makes the illegal thing, that is the problem. Even if every part in the kit is used in a legal gun, selling the kit that makes the illegal device is still illegal.

Radar jammers are illegal in many states. Someone could build one out of off the shelf components. Each component is legal, but if you sold a kit with just the components and either include instructions or point to instructions, you are selling the illegal item.
That's not, I believe, what these companies are doing. They're not selling kits with "just the components" to make an assault weapon. The "kits" (80% lower and jig) can be used to make NY-legal firearms. Letitia seems to not understand this point. In her press conference, she said "There is only one purpose for the products that these companies are selling — to manufacture illegal and deadly assault weapons", but she is wrong. There's a completely lawful purpose for acquiring 80% lowers.
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Old 09-23-2019, 04:19 PM
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Originally Posted by Bone View Post
Seems like a conflict between federal and state law, with the NY interpretation being more restrictive. Whether the NY law runs afoul of the Constitution is for the courts.

The fact that the items are not firearms may actually make it easier for NY to ban them. By not being firearms, they don't get the same protections and the state has more leeway in what steps they take to restrict them.

It's clear the feds do not consider unfinished blanks to be firearms.

https://www.atf.gov/qa-category/receiver-blanks

"Ghost gun" is a term a congressmen from my state came up with, in all of his ignorant glory.
The state probably could ban 80% lowers (I believe CA recently did / is trying to do this), but NY has not yet banned them, at least to my knowledge. There's no NY law to run afoul of here (with respect to 80% lowers). It's just the AG sending out a threatening letter.
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Old 09-23-2019, 04:27 PM
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Originally Posted by HurricaneDitka View Post
But the "components to have that thing" can also be assembled into firearms that are perfectly legal to own in New York. As a hypothetical, imagine that a state wanted to ban a certain 4-door pickup truck. There's a two-door model that's still perfectly legal. Is someone guilty of possessing "the components to have that thing" (the 4-door pickup truck) if they've got a rear axle that is used on both the 2-door and 4-door model?
Maybe. I don't know guns enough. But this sounds like a clear case of letter of the law vs. spirit of the law. The spirit of the law is that there shouldn't be privately owned assault rifles in New York, and people are blatantly trying to flout that.
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Old 09-23-2019, 04:42 PM
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Quote:
Originally Posted by HurricaneDitka View Post
But the "components to have that thing" can also be assembled into firearms that are perfectly legal to own in New York. As a hypothetical, imagine that a state wanted to ban a certain 4-door pickup truck. There's a two-door model that's still perfectly legal. Is someone guilty of possessing "the components to have that thing" (the 4-door pickup truck) if they've got a rear axle that is used on both the 2-door and 4-door model?
If I'm advertising all of the materials needed to create the 4-door model, along with all of the instructions and some of the more specific tools to create the 4-door model, and my selling point is "they won't be able to take your 4-door away if they don't know you have it," then one could very well impute that I'm knowingly furnishing you with the means to create the 4-door. That's what mens rea has to do with it.
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Old 09-23-2019, 04:49 PM
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If I'm advertising all of the materials needed to create the 4-door model, along with all of the instructions and some of the more specific tools to create the 4-door model, and my selling point is "they won't be able to take your 4-door away if they don't know you have it," then one could very well impute that I'm knowingly furnishing you with the means to create the 4-door. That's what mens rea has to do with it.
I reiterate: no one is doing that. No one is selling them "all of the materials needed to create the 4-door model", or the firearm equivalent of it: an "assault weapon". They're selling a single partially-completed component. It's not unique to assault weapons. It's a base component that could be used in either an assault weapon or a perfectly-legal rifle.

ETA: and the alleged marketing tag-line didn't mention assault weapons either. It said "it" as in "If they don’t know you have it, they can’t take it." There's no reason the "it" there can't be a rifle that's perfectly legal to own in NY today.

Last edited by HurricaneDitka; 09-23-2019 at 04:52 PM.
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Old 09-23-2019, 05:39 PM
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Well, IANAL, but I trust that the members of the NY Att'y Gen'l's Office are. So let's take a look at the actual cease and desist letter:

Quote:
To Whom It May Concern:

My office has reason to believe that you are engaged in the sale and advertisement to residents of New York of unfinished lower receivers and firearms components that are intended for the assembly of assault weapons, as defined by New York State law. N.Y. Pen. L. §

265.00(22). Assault weapons are illegal in New York, and the sale and/or advertisement of these products violates New York law. You are directed to cease the sale and advertisement of these products to residents of New York within five (5) days of the receipt of this notice.

New York law criminalizes the possession, manufacture, sale, and transportation of assault weapons, which are defined as any semiautomatic rifle that can accept a detachable magazine and has at least one of several enumerated secondary characteristics, including a pistol grip or a stock that folds, telescopes, or bears a thumbhole. N.Y. Pen. L. §§ 265.00(22); 265.02(7); 265.10(1)–(3). Yet those are precisely the purposes of the products that your website(s) appear to offer for sale to New Yorkers. Your website offers unfinished lower receivers that require simple milling in order to manufacture unregistered and unserialized assault weapons, despite the fact that such manufacture and possession are illegal in New York. Nor does your website adequately warn New York consumers that using these products in the manner for which they are intended and advertised could result in imprisonment and/or fines.

The sale of such products to New Yorkers gravely endangers the public welfare by promoting the possession of illegal weapons and obstructing law enforcement investigations into the misuse of these weapons, and constitutes a criminal offense under New York State law. N.Y. Pen. L. §§ 115.00(1); 265.10(1)–(3). These sales also contravene New York’s consumer protection statutes, which prohibit “repeated fraudulent or illegal acts” as well as “deceptive acts or practices” or “[f]alse advertising in the conduct of any business, trade or commerce.” N.Y. Exec. L. § 63(12); N.Y. Gen. Bus. L. §§ 349, 350. Any misrepresentation or omission on your website that it is a criminal offense under New York State law to manufacture and/or possess assault weapons—the very purpose for which those products are intended and designed—is a deceptive trade practice that may subject you to disgorgement of all income resulting from such fraudulent and illegal practice, restitution to consumers, and penalties of up to $5,000 for each individual violation of Article 22-A of New York’s General Business Law. N.Y. Gen. Bus. L.
§ 350-d. I hereby demand that you stop the sale and advertisement to residents of New York of unfinished lower receivers and firearms components that are intended for the assembly of assault weapons. You should take all necessary steps to preserve all physical and electronic records and data pertaining to matters that are the subject of this letter. The information that should be preserved includes active data (readily accessible today), archived data (stored on backup media), and deleted data (still recoverable through the use of computer forensics). You should also take affirmative steps to prevent anyone with access to your data systems and archives from seeking to modify or destroy electronic evidence on network or local hard drives or servers.

Pursuant to Executive Law § 63(12) and General Business Law § 349, the recipients of this notice are afforded the opportunity to show orally or in writing to the New York State Office of the Attorney General, within five business days of receipt of this notice, why the Attorney General should not initiate an enforcement action. Such correspondence may be sent to ghostguns@ag.ny.gov.

Sincerely,

Letitia James
New York State Attorney General
[bolding mine]

If you're a NY resident and you take issue with this, I recommend that you contact your elected representatives. Winning points on an internet message board will not provide the injunctive relief you seem to feel is in order. Good day, Sir.
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Old 09-23-2019, 06:15 PM
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The proper response to "I hereby demand that you stop the sale and advertisement to residents of New York of unfinished lower receivers and firearms components that are intended for the assembly of assault weapons" is "the blocks of aluminum we sell are not 'intended for the assembly of assault weapons', so kick rocks, hippy", or something along those lines.

Last edited by HurricaneDitka; 09-23-2019 at 06:19 PM.
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Old 09-23-2019, 08:11 PM
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Ok
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Old 09-23-2019, 08:56 PM
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Relabeled their intended use as a marajuana drugs bong. Hippies understand that, ammirite?
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It may be because I'm a drooling simpleton with the attention span of a demented gnat, but would you mind explaining everything in words of one syllable. 140 chars max.

Last edited by snfaulkner; 09-23-2019 at 08:56 PM.
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Old 09-23-2019, 08:57 PM
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Never mind.

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Old 09-23-2019, 09:18 PM
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I guess rules lawyering is only for gun owners.

I remember well several debates that had to do with Blue states changing tax laws to allow citizens to make 100% tax deductible donations to the state, for the express purpose of evading Trump’s tax law limiting deductions of state and local taxes.

“Ho ho ho, just wait until the IRS says you can’t make such end runs around the law!” said some posters, barely containing their glee that transparent attempts to undermine the conservative agenda of sticking it to libs would meet with a governmental smackdown.

Now we see the rules lawyering explicitly applied to a law regarding guns, and suddenly finding ways to undermine valid laws is as good clean fun as blowin’ shut up. Yee-haw.
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Old 09-23-2019, 09:36 PM
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... Now we see the rules lawyering explicitly applied to a law regarding guns, and suddenly finding ways to undermine valid laws is as good clean fun as blowin’ shut up. Yee-haw.
People in NY today can and do purchase stripped AR lowers (essentially a 100% complete lower receiver). It's perfectly legal, and no more a violation of NY's ban on "assault weapons" than the 80% lowers.
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Old 09-23-2019, 09:43 PM
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Originally Posted by HurricaneDitka View Post
ETA: and the alleged marketing tag-line didn't mention assault weapons either. It said "it" as in "If they don’t know you have it, they can’t take it." There's no reason the "it" there can't be a rifle that's perfectly legal to own in NY today. [...]

The proper response to "I hereby demand that you stop the sale and advertisement to residents of New York of unfinished lower receivers and firearms components that are intended for the assembly of assault weapons" is "the blocks of aluminum we sell are not 'intended for the assembly of assault weapons' [...]
I'll venture a guess that the NY AG's office managed to figure out that someone might try that response, and thought their position vis-a-vis the relevant laws was strong enough to justify sending the letter anyway.

It seems that what you're looking for here is an ironclad legal opinion on whether their position is justified. I don't know whether you can find such an opinion here (or anywhere for that matter, until the courts have chewed over the issue), but in the meantime I don't think you're going to get anywhere with suggesting naive objections to the AG's position that they've probably already considered.
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Old 09-23-2019, 10:04 PM
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I'll venture a guess that the NY AG's office managed to figure out that someone might try that response, and thought their position vis-a-vis the relevant laws was strong enough to justify sending the letter anyway. ...
I doubt it. I genuinely this she's too ignorant of gun laws to even be aware that legal AR-15 builds exist in NY. At least, her letter and press conference seem to hint that she doesn't realize that.
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Old 09-23-2019, 10:31 PM
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I doubt it. I genuinely this she's too ignorant of gun laws to even be aware that legal AR-15 builds exist in NY. At least, her letter and press conference seem to hint that she doesn't realize that.
Just a few years ago, the NY AG's office under Eric Schneiderman indicted "ghost gun" traffickers for illegal builds, resulting in prison sentences for the accused. Do you think that the AG's office as a criminal justice body has just completely forgotten what's legal and what isn't when it comes to "ghost guns"?

And do you think any AG's office sends out "cease and desist" letters for behavior that any schmoe on the internet can immediately tell is obviously totally legal?

Of course, IANAL and am not competent to determine the legal status of the activities in question. But given that the leadership and staff of the AG's office presumably are, it strikes me that your assumption that the AG's all wrong about this could well indicate a naive misunderstanding on your part rather than hers.
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Old 09-23-2019, 10:51 PM
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Originally Posted by Kimstu View Post
Just a few years ago, the NY AG's office under Eric Schneiderman indicted "ghost gun" traffickers for illegal builds, resulting in prison sentences for the accused. Do you think that the AG's office as a criminal justice body has just completely forgotten what's legal and what isn't when it comes to "ghost guns"?

And do you think any AG's office sends out "cease and desist" letters for behavior that any schmoe on the internet can immediately tell is obviously totally legal?

Of course, IANAL and am not competent to determine the legal status of the activities in question. But given that the leadership and staff of the AG's office presumably are, it strikes me that your assumption that the AG's all wrong about this could well indicate a naive misunderstanding on your part rather than hers.
The criminals to whom you refer were *selling* the firearms they manufactured. Manufacturing and selling without a FFL is against the law throughout the USA.

It is- or should be, if there are places you can't- perfectly legal to make your own weapon, subject to other laws controlling the end product. Why shouldn't one? This is America, where individualism is more prized than elsewhere, and we don't hold the view 'if it isn't allowed, then it's forbidden'. The issue with 80% receivers is serialization and where the line is drawn (must you mine your own bauxite?) The BATFE is fine with a part sold that cannot house a trigger assembly.

There are also 80% receivers for 1911s (aluminum) and Glocks (plastic). I have made a few (I like tinkering and making things) and gave them serial numbers per BATFE rules. They work fine. And they're legal.

I think the AG is trying to run a bluff to make sales not worth the trouble for someone.
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Old 09-23-2019, 11:01 PM
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Originally Posted by Kimstu View Post
Just a few years ago, the NY AG's office under Eric Schneiderman indicted "ghost gun" traffickers for illegal builds, resulting in prison sentences for the accused. Do you think that the AG's office as a criminal justice body has just completely forgotten what's legal and what isn't when it comes to "ghost guns"? ...
The prosecution, AFAICT, was for the acts of selling them, and possession by prohibited persons. The simple making of a firearm (from an 80% lower) and possession of it by a non-prohibited person is not against the law in NY. The press releases (and subsequent news coverage) seem deliberately crafted to obscure these facts. It does contain this tidbit though: "an incomplete lower receiver—lacking certain holes, slots, or cavities—is not considered a firearm, but instead regulated as if it were just a piece of metal." Now they've sent out cease and desist letters to companies for selling those pieces of metal.

Last edited by HurricaneDitka; 09-23-2019 at 11:02 PM.
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Old 09-23-2019, 11:19 PM
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Also worth mentioning: these websites and companies are likely based outside of NY. That makes this appear like a lame attempt by NY to regulate interstate commerce.
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Old 09-23-2019, 11:26 PM
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... I think the AG is trying to run a bluff to make sales not worth the trouble for someone.
This is my suspicion too.
  #27  
Old 09-24-2019, 06:59 AM
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The key part seems to be that they want the data on who is purchasing the products, undermining the marketing angle of the state not knowing about your gun. This is simply the state trying to spook people it doesn’t like.
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Old 09-24-2019, 08:11 AM
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Youtube has removed the video now, but there was a very interesting video up there of a guy melting down 265 beer cans, casting a block of aluminum, and machining it into an AR-15 lower received. He assembled it and test fired it several times. He also did the same thing with brass cartridge cases in another video. (Neither video was instructional, they just showed the guy at work.)



So, a reasonably skilled machinist with a reasonably equipped home shop was able to turn out a fully functional lower receiver in a day or so. So, no need for 80% complete kits, just a supply of beer cans and some ordinary machine tools.
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Old 09-24-2019, 09:46 AM
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Originally Posted by sps49sd
It is- or should be, if there are places you can't- perfectly legal to make your own weapon, subject to other laws controlling the end product.
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Originally Posted by HurricaneDitka View Post
The prosecution, AFAICT, was for the acts of selling them, and possession by prohibited persons. The simple making of a firearm (from an 80% lower) and possession of it by a non-prohibited person is not against the law in NY.
As then-AG Schneiderman said in that linked cite, though,
Quote:
“It does not matter if you build it yourself or buy it off the street corner—an illegal gun is an illegal gun, and we will prosecute you to the fullest extent of the law.”
I think it'll take more than a bunch of "suspicion" to make a truly convincing argument that the current AG's position that she's trying to discourage manufacture of illegal guns is not legally justified.
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Old 09-24-2019, 12:21 PM
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As then-AG Schneiderman said in that linked cite, though,


I think it'll take more than a bunch of "suspicion" to make a truly convincing argument that the current AG's position that she's trying to discourage manufacture of illegal guns is not legally justified.

Even if she is banning the same (unmodified) item used to manufacture a legal gun?
  #31  
Old 09-24-2019, 01:47 PM
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Originally Posted by HurricaneDitka View Post
This is my suspicion too.
Washington DC does this kind of thing a lot - pass a law, it's un-Constitutional, they pass a different law, also gets found un-Constitutional, pass another, lather, rinse, repeat. In the meantime, gun control types get publicity, gun owners are hassled and thereby raise the opportunity cost of gun ownership, everyone is happy except gun owners and Constitutionalists.

Regards,
Shodan
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Old 09-24-2019, 03:44 PM
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Even if she is banning the same (unmodified) item used to manufacture a legal gun?
As I've said, IANAL, and I'm not sure whether your apparent conflation of a "cease and desist" letter with "banning" is an accurate representation of the situation. But AFAICT, what the NY AG's office is trying to do is to get people to stop selling materials that are "intended for the assembly of" weapons that are illegal in New York.

Are you arguing that these materials are not in fact intended for the assembly of NY-illegal "ghost guns", and that the manufacturers are not trying to attract customers by hinting at the possibilities for illegal "ghost gun" construction?

Or are you just complaining that if the manufacturers can manage to throw a thin veil of deniability over that intention, it's not fair for the AG's office to take any action that demonstrates that they can see through it?
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Old 09-24-2019, 06:17 PM
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So can new York actually prosecute individuals and businesses who are not present in new York for mailing items that are legal under federal law but illegal in NY?

Say I sell a lawn mower illegal by carb to a resident of California. My business has no presence in California. Can they go after me?
  #34  
Old 09-24-2019, 06:39 PM
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So can new York actually prosecute individuals and businesses who are not present in new York for mailing items that are legal under federal law but illegal in NY?
Well, I wish that somebody who actually IAL, preferably licensed to practice in New York, would undertake to answer these questions of fact. Until they do, the best I can come up with is to point to the OP's linked letter from the NY AG's office:
Quote:
My office has reason to believe that you are engaged in the sale and advertisement to residents of New York of unfinished lower receivers and firearms components that are intended for the assembly of assault weapons [...] illegal in New York, and the sale and/or advertisement of these products violates New York law. [...]

New York law criminalizes the possession, manufacture, sale, and transportation of [...] any semiautomatic rifle that can accept a detachable magazine and has at least one of several enumerated secondary characteristics [...] Yet those are precisely the purposes of the products that your website(s) appear to offer for sale to New Yorkers. [...] Nor does your website adequately warn New York consumers that using these products in the manner for which they are intended and advertised could result in imprisonment and/or fines. [...]

These sales also contravene New York’s consumer protection statutes, which prohibit “repeated fraudulent or illegal acts” as well as “deceptive acts or practices” or “[f]alse advertising in the conduct of any business, trade or commerce.” [...] Any misrepresentation or omission on your website that it is a criminal offense under New York State law to manufacture and/or possess assault weapons—the very purpose for which those products are intended and designed—is a deceptive trade practice that may subject you to disgorgement of all income resulting from such fraudulent and illegal practice, restitution to consumers, and penalties of up to $5,000 for each individual violation [...]

[...] the recipients of this notice are afforded the opportunity to show orally or in writing to the New York State Office of the Attorney General, within five business days of receipt of this notice, why the Attorney General should not initiate an enforcement action.
I can't say of my own personal knowledge whether it's legally legit for the NY AG's office to require the sellers/advertisers in question to refrain from selling/advertising their wares to New Yorkers. But it seems fairly clear from this letter that the NY AG's office holds the opinion that it is.
  #35  
Old 09-24-2019, 06:39 PM
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So can new York actually prosecute individuals and businesses who are not present in new York for mailing items that are legal under federal law but illegal in NY?

Say I sell a lawn mower illegal by carb to a resident of California. My business has no presence in California. Can they go after me?
I'm pretty sure their jurisdiction ends at their border, but I'm open to correction on this point.
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Old 09-24-2019, 07:13 PM
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I'm pretty sure their jurisdiction ends at their border, but I'm open to correction on this point.
Sure, but define "their border." A seller actively marketing to New Yorkers, for example by direct mail or advertising in New York newspapers, may be considered to be "in New York" for purposes of prosecution even if the business itself is located elsewhere. Long-arm jurisdiction is a fascinating and complex area of law.
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Old 09-24-2019, 10:12 PM
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Sure, but define "their border." A seller actively marketing to New Yorkers, for example by direct mail or advertising in New York newspapers, may be considered to be "in New York" for purposes of prosecution even if the business itself is located elsewhere. Long-arm jurisdiction is a fascinating and complex area of law.
Ok. So let's say my add for that illegal item is on a regular website. It doesn't say anywhere on the site "welcome New Yorkers" but I just don't care, anyone that pays up in the Continental USA, I ship to them.

Last edited by SamuelA; 09-24-2019 at 10:13 PM.
  #38  
Old 09-24-2019, 10:44 PM
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Ok. So let's say my add for that illegal item is on a regular website. It doesn't say anywhere on the site "welcome New Yorkers" but I just don't care, anyone that pays up in the Continental USA, I ship to them.
There are a lot of products that are prohibited on a state by state basis besides firearms. It would be silly to say something is illegal, but a vendor like Amazon could simply ship there. Of course it's illegal to ship into a state a product that is illegal.

For example, starting July 1, 2019, any garage door opener sold or installed for residential use in CA is required to have a battery backup system in case of power failure.

Quote:
19891. (a) In addition to any other remedies permitted by law, any violations of subdivision (a), (b), or (c) of Section 19890 or Section 19892 shall be subject to a civil penalty of one thousand dollars ($1,000) per opener installed, manufactured, sold, or offered for sale which is not in compliance with Section 19890 or 19892.
(b) In addition to any other remedies permitted by law, any violations of subdivision (d) or (h) of Section 19890 shall be subject to a civil penalty of five hundred dollars ($500) per opener installed and operational, that is not in compliance with Section 19890.
...
19892. (a) On or after July 1, 2019, no person, corporation, or entity shall manufacture for sale in this state, sell, offer for sale at retail or wholesale, or install in this state a residential automatic garage door opener that does not have a battery backup function that is designed to operate when activated because of an electrical outage. The battery backup function shall operate in a manner so that the automatic garage door opener is operational without interruption during an electrical outage.
  #39  
Old 09-24-2019, 11:28 PM
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There are a lot of products that are prohibited on a state by state basis besides firearms. It would be silly to say something is illegal, but a vendor like Amazon could simply ship there. Of course it's illegal to ship into a state a product that is illegal.

For example, starting July 1, 2019, any garage door opener sold or installed for residential use in CA is required to have a battery backup system in case of power failure.
How does this work? Every retailer anywhere in the USA is required to know if their products are legal or not for any possible US state? Even if they have no business presence there and are just mailing stuff online? I take it this applies to online services as well? ("sorry, you can't subscribe to this porn site as I see you live in <religious state> and this type of porn is not legal there")

This seems rather, well, problematic. Not only for all the business complexity this adds, but it kind of breaks interstate commerce. What stops Kansas for declaring that corn from any other state but theirs is not legal? I had the impression that Federal laws were mostly structured in a way that basically makes goods and services the Feds think are ok (approved cars, approved electrical devices, approved medicines, approved firearms, and so on) that states cannot ban items that the Federal authorities are ok with. Except guns, it seems.

I mean, otherwise, why hasn't Michigan banned foreign cars?

Last edited by SamuelA; 09-24-2019 at 11:29 PM.
  #40  
Old 09-24-2019, 11:55 PM
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My (limited, IANAL) understanding is that there is a fairly novel new field of legal pursuit: states using civil suits to enforce their will where the Constitution would normally seem to prohibit their regulation of interstate commerce. For example, NJ has sued (civilly) a couple of gun retailers: U.S. Patriot Armory out of California in March and New Frontier Armory LLC out of Nevada in June. New York appears not content to play second fiddle to New Jersey, and are starting the groundwork for their own lawsuits.

I'm skeptical their lawsuits would actually succeed on the merits, for the reasons you outlined, but for many companies (and I think this is what they're counting on), it's not going to be worth it to battle it out in court against a deep-pocketed AG office, so they'll just concede to their demands and quit selling to NJ or NY. Someone should counter-sue the NY and NJ AG's office for some flavor of deprivation of rights under color of law.

Last edited by HurricaneDitka; 09-24-2019 at 11:57 PM.
  #41  
Old 09-25-2019, 08:32 AM
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As I've said, IANAL, and I'm not sure whether your apparent conflation of a "cease and desist" letter with "banning" is an accurate representation of the situation. But AFAICT, what the NY AG's office is trying to do is to get people to stop selling materials that are "intended for the assembly of" weapons that are illegal in New York.

Are you arguing that these materials are not in fact intended for the assembly of NY-illegal "ghost guns", and that the manufacturers are not trying to attract customers by hinting at the possibilities for illegal "ghost gun" construction?

Or are you just complaining that if the manufacturers can manage to throw a thin veil of deniability over that intention, it's not fair for the AG's office to take any action that demonstrates that they can see through it?
Whether the item can be modified (hint: everything can be modified) is immaterial. She is banning the sale of a completely LEGAL item. You keep going on about an illegal item (it isn't) that can be MADE to be illegal. The item in question can (and is) be assembled into a LEGAL version of the same firearm that would need to be modified to make it ILLEGAL.

This is exactly the things that happen when you start trying to ban things that have no business being banned (AR-15's) due to cosmetic features.
  #42  
Old 09-25-2019, 08:44 AM
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Whether the item can be modified (hint: everything can be modified) is immaterial. She is banning the sale of a completely LEGAL item. You keep going on about an illegal item (it isn't) that can be MADE to be illegal. The item in question can (and is) be assembled into a LEGAL version of the same firearm that would need to be modified to make it ILLEGAL.

This is exactly the things that happen when you start trying to ban things that have no business being banned (AR-15's) due to cosmetic features.
I don't disagree, but there are still limits to "freedom".

*WANT TO BREAK IN AND STEAL STUFF? BUY MY LOCKPICK KIT AND MY DVD "How I made millions of dollars stealing jewelry!" Also, the contact info of my FAVORITE FENCE is included for an additional payment of $99.99. What are you waiting for? Start burglarizing today!*

Arguably that above ad copy is "free speech", and the items being sold are legal. (a lockpick kit, instructional DVD, and the contact information of a criminal)

But combined, it appears to be active participation in crime.

** item between these is fictional

Last edited by SamuelA; 09-25-2019 at 08:45 AM.
  #43  
Old 09-25-2019, 08:50 AM
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I don't disagree, but there are still limits to "freedom".

*WANT TO BREAK IN AND STEAL STUFF? BUY MY LOCKPICK KIT AND MY DVD "How I made millions of dollars stealing jewelry!" Also, the contact info of my FAVORITE FENCE is included for an additional payment of $99.99. What are you waiting for? Start burglarizing today!*

Arguably that above ad copy is "free speech", and the items being sold are legal. (a lockpick kit, instructional DVD, and the contact information of a criminal)

But combined, it appears to be active participation in crime.

** item between these is fictional

Understood, but what if instead the ad said that this new kit would allow you to get into YOUR own house in the event you lose your key. Or it could be used to start a business whereas you open peoples doors for a fee, but OTOH, it could also be used to break in to others houses.
  #44  
Old 09-25-2019, 11:00 AM
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How does this work? Every retailer anywhere in the USA is required to know if their products are legal or not for any possible US state? Even if they have no business presence there and are just mailing stuff online? I take it this applies to online services as well? ("sorry, you can't subscribe to this porn site as I see you live in <religious state> and this type of porn is not legal there")
Yes to all these questions. Try to go on Amazon and buy a smoke detector in CA with a replaceable battery - you can't.
  #45  
Old 09-25-2019, 12:29 PM
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Yes to all these questions. Try to go on Amazon and buy a smoke detector in CA with a replaceable battery - you can't.
Amazon has a business presence in CA. (Fulfillment centers and software studios)

I would assume BH photo or something would sell it
  #46  
Old 09-25-2019, 12:57 PM
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Whether the item can be modified (hint: everything can be modified) is immaterial. She is banning the sale of a completely LEGAL item. You keep going on about an illegal item (it isn't) that can be MADE to be illegal. The item in question can (and is) be assembled into a LEGAL version of the same firearm that would need to be modified to make it ILLEGAL.

This is exactly the things that happen when you start trying to ban things that have no business being banned (AR-15's) due to cosmetic features.
You know, he's right.

Look, if they wanna ban the sale of AR15s, that's their right (It wont do actually anything significant but it will make them feel better). And if they wanna expand this to kits- that's their right also. But pass a fucking law, dont sneak in around the back door.
  #47  
Old 09-25-2019, 01:13 PM
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Amazon has a business presence in CA. (Fulfillment centers and software studios)

I would assume BH photo or something would sell it
While it's true they have fulfillment centers, that's not impactful in any way. Look at the law I cited. It's prohibited subject to fines. If you think a different vendor could engage in these sales, you're super wrong.
  #48  
Old 09-25-2019, 03:22 PM
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While it's true they have fulfillment centers, that's not impactful in any way. Look at the law I cited. It's prohibited subject to fines. If you think a different vendor could engage in these sales, you're super wrong.
That's fine. So again, Detroit could pass a law saying that bringing a foreign made car into the city is a billion dollar fine. But does that mean they can actually get a federal court to apply that fine to a Toyota dealer in Texas?

Any jurisdiction can pass any law they want. It's enforcing it when the actor is not within their borders that is the hard part

Last edited by SamuelA; 09-25-2019 at 03:23 PM.
  #49  
Old 09-25-2019, 05:15 PM
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That's fine. So again, Detroit could pass a law saying that bringing a foreign made car into the city is a billion dollar fine. But does that mean they can actually get a federal court to apply that fine to a Toyota dealer in Texas?
If a Texas Toyota dealer is actually bringing the car into Detroit, then the dealer or some employee thereof is physically present in Detroit, which makes that person subject to Detroit's laws, AND subject to the personal jurisdiction of the Detroit court system. If they are shipping the car to Detroit, things get dicier, and under International Shoe and its progeny, the court would have to determine whether the dealer had sufficient minimum contacts in Michigan to bring the dealer under the jurisdiction of the Michigan courts.

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Any jurisdiction can pass any law they want. It's enforcing it when the actor is not within their borders that is the hard part
Domesticating a New York judgment in a Texas or Oklahoma or Florida court is not nearly as difficult as you seem to be imagining, and once that happens, all enforcement measures allowed under Texas or Oklahoma or Florida law become available.
  #50  
Old 09-25-2019, 06:42 PM
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Domesticating a New York judgment in a Texas or Oklahoma or Florida court is not nearly as difficult as you seem to be imagining, and once that happens, all enforcement measures allowed under Texas or Oklahoma or Florida law become available.
I'm not saying it's difficult. I'm just pointing out that in this case, we are talking about a package mailing service being the "agent" that carries the illegal item from a state where it is perfectly legal, where Federal laws says it is perfectly legal, into a state where it is not legal.

In the car dealer case, assume it's a similar generic car transportation service.

And really I'm just asking the question - if individual states can do this, why should the courts in the other state, or the Federal government, respect their laws?
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