Grandfathering Meaningless in McCarthy’s Ban

We have the final language of the McCarthy Bill, as introduced in Congress. A key aspect to this proposed law, which I have not touched on before, is perhaps the most important aspect of it:

(v)(1)(A)(i) Except as provided in clause (ii), it shall be unlawful for a person to transfer or possess a large capacity ammunition feeding device.

The law begins with the default presumption that it is illegal to possess a “large capacity ammunition feeding device.” That you possessed the magazine prior to the ban would be an affirmative defense to the charge in court that you possessed a magazine with 11 rounds or more. You could be arrested and charged for possessing one, and be forced to prove in court that you owned it prior to the ban. The original assault weapons ban contained this:

(4) If a person charged with violating paragraph (1) asserts that paragraph (1) does not apply to such person because of paragraph (2) or (3), the Government shall have the burden of proof to show that such paragraph (1) applies to such person. The lack of a serial number as described in section 923(i) of title 18, United States Code, shall be a presumption that the large capacity ammunition feeding device is not subject to the prohibition of possession in paragraph (1)

McCarthy’s bill contains no such exemption, which puts the burden on you to prove you fall under one of these two exemptions. Carolyn McCarthy has been on NPR saying that the things bloggers have been saying about her bill aren’t true. She knows damned well they are true, and so do the anti-gun groups. The purpose of this bill is to try to get more of us thrown in federal prison.

I am not naive enough to believe that they merely don’t know how to draft laws. Dennis Henigan is not a fool or an idiot. He knows federal guns laws, and I would be very surprised if McCarthy’s staffers didn’t consult with the Brady Center on this bill. By removing the original grandfathering and protections that were in the original 1994 ban, the effect is vastly different than what we lived under with that regime. Under this law, you may really only possess 11 round or greater magazines, unless you have proof you possessed them prior, at the arbitrary discretion of the authorities. How many magazines do you have documentation for?

Remember when they call for “common ground,” and “common sense,” they want you in prison. They are at the height of their disingenuousness when they use this kind of language in the debate. If I were a lawyer, and I was your lawyer, I’d suggest the safe thing to do is throw all your magazines that hold 11 rounds or more in a river, along with your Henry Rifles, if you wanted to be completely safe from prosecution persecution in the even this bill were, God forbid, to actually pass.

Proving it was manufactured before a certain date is not enough, and the burden is on you to prove you had it prior, and possession and transfer are felonies otherwise. If you can’t prove ownership, it’ll be illegal for you to have it, for all intents and purposes, under McCarthy’s proposed law. The grandfathering provided here is actually meaningless. This bill effectively bans all magazines that hold more than 11 rounds, turning millions and millions of Americans into potential felony prosecutions. NRA has put out a letter to Capitol Hill announcing opposition to the bill, telling members to expect more from their office in the coming week. I hope among the information supplied to members is just how radical and draconian McCarthy’s bill really is. We have to fight this tooth and nail, and continue to drive these people into political extinction.

41 thoughts on “Grandfathering Meaningless in McCarthy’s Ban”

  1. Oh you’re just being paranoid, I’m sure law enforcement will use discretion and not throw good people in jail =P

  2. Damn, 47 co-sponsors first day… Since it is going to the house judiciary I wonder what chances it may have?

  3. shawn,
    The chairmen of the judiciary comittee is texas republican Lamar Smith an A++++ rated guy. doubt this will see the light of day

    the co-sponsors don’t scare me- remember HR 1022 a few years back got like 80 co-sponsors. Also remember this bill was circulated to all members of the house so we can be safe in saying that only 47 reps really want this- the others are against this or just don’t want to be a big part of it. Thats good for us.

  4. This is the reason that, as soon as I heard it had been introduced, I called my Representative’s Washington office and let them know that I oppose the bill. Hopefully, if enough of this do this, it will discourage any more bills.

  5. So, maybe eleven (11) percent of House members were willing to sign on to this – sounds about right.

    And those zealots, fighting their righteous fight against individual liberty and responsibility, are too lacking in perception to notice what a sad little minority they have become, and what a sadder and even smaller minority they will be after 2012.

  6. Although I think that it doesn’t have a chance of passing..

    If there there is some grandfathering in the bill, how about laying all your mags on a current newspaper (pre effective date) and snap a photo. Print a could copies of this photos and upload it to a safe location.

  7. To MikeB504’s point, go one further. Inventory your magazines, take digital photos with the timestamps on the pics, store on a cheap flash drive and then place a copy of your inventory, a signed and witness/notarized declaration of the contents of the envelope and the drive in an envelope. Seal and mail it to yourself but don’t open it. Stick the sealed envelope in a safe place and wait.

    When you’re arrested for possessing banned magazines, your defence attorney whips out the envelope and opens it in front of the jury and produces the contents. With the dated postmark on front along with photos of all your magazine and inventory declaration, I’d say you’d establish an affirmative defence that you possessed the mags prior to the ban. Especially if the inventory and detail photos matched exactly what the cops found you owned. Bonus points for paint marks and other unique identifiers on each magazine that can be linked to in the photos with the physical item in hand for the jury to compare to.

    Deliberations would last about five minutes. It would take a lot longer to get your property back from the evidence locker after making the prosecutor look like a fool.

  8. so transfering prebans is back on the table by my reading. that’s something anyway

  9. Matt,

    Doesn’t everyone write unique numbers on the side/bottom of their mags?

    You bring up a some good points about additional time related documentation. I would submit that if you uploaded them flickr, adorama, or some other 3rd party photo sharing site it would be a good way to prove the time of creation. You set theimage to be completely private, but they always have the date that you uploaded the images.

  10. aubrey,

    Actually, no. You would not be able to transfer a “preban” magazine. If you don’t already own it when the bill goes into effect, you’ll NEVER be able to own it. Make sure you reread it. The devil is in the details.


    This bill is written exactly like ALL of NJ’s firearms laws; declare something as illegal and carve out a tiny exemption that people need to squeeze into. Hopefully the rest of the country has more sense than all of NJ.


  11. BigHayden,
    I did read it, quite carefully.

    clause i says (“Except as provided in clause (ii), it shall be unlawful for a person to transfer or possess a large capacity ammunition feeding device.”

    clause ii says “shall not apply to the possession of a large capacity ammunition feeding device otherwise lawfully possessed within the United States on or before the date of the enactment of this subsection.”

    it does not specify who was doing the possessing. if you have different thoughts I’d like to hear them, but don’t assume I didn’t read it.

  12. Let’s assume the worst and that this hypothetical law is enacted. What happens if you put all your mags into an enduring firearms trust? Couldn’t you have all the mags technically owned by a trust or corporation which is a legal structure that endures even after the death of any one individual?


    Brady President Paul Helmke said: “Allowing access to high-capacity magazines is beyond the pale. Banning them is a matter of public safety. There is no Second Amendment or God-given right to be able to maim and kill your fellow Americans with military-style arms.
    [emphasis mine]

    Wow. That is surely the Grand-daddy of straw men.

  14. Aubrey,

    The exception in clause (ii) only applies to “possession.” Transfer of existing mags would still be prohibited under clause (i).

  15. ” There is no Second Amendment or God-given right to be able to maim and kill your fellow Americans with military-style arms.”

    OK. I’ll get in my time machine and go back to the 1770’s and tell George Washington. I imagine he would be receptive to this argument.

  16. Sounds like what they want is for you to register all of those mags so that they know you have them. Of course, that just means they’ll be able to confiscate them easier when they completely outlaw them with a later bill.

  17. Wow. 11 rounds. 3 of my 6 pistols have standard 15 or 16 round capacity. All but 1 of my AR mags. All but 1 of my 10/22 “assault weapon” mags..

    Seems 1911’s might see a surge in popularity if this passes.

    Not a good bill for Kel-Tec’s new shotgun.

  18. “The exception in clause (ii) only applies to “possession.” Transfer of existing mags would still be prohibited under clause (i).”

    You’re right! How could I miss that? I assumed the exception applied to the whole clause. Thanks!

  19. I alerted the M1 Carbine collectors forums about the ban — it’ll put out all the 15 round USGI Carbine mags that go with the collector rifles.

    I also wrote my representative yesterday (McCollum, MN), but since she’s a co-sponsor and a bleeding heart (we tried to get her out last fall, no dice) — I don’t hold alot of hope for her to change her min.

  20. Sebastian,
    I think you have really got to the heart of the matter in this post. We err in assuming our opponents are idiots that cannot write a law. As you state, They are really very intelligent, but simply want to see us all imprisoned.
    Thus, by assuming that this will die in committee, we would be committing the grievous mistake of further underestimating our opponents.

    I will be calling my Rep today–and then sending money to my favorite 2A orgs.

    Thank you sir,and God bless you for you contributions to Freedom and Liberty!

  21. McCarthy shure knew how to make lemonade from lemons…. Her husband and son get shot and she turned it into a congressonal seat. She just wants to turn us all into victims just like they were.

  22. I have to wonder, do they intentionally write bill this badly? I mean, this way, when folks come out against bills like this, they cry to momma about how the big bad gun lobby is bullying them, and touching them in a private place, when all they’re trying to do is pass a law.

    Boo hoo.

  23. Cemetery:

    At best, they are indifferent to gun owners ended up in legal trouble. After all, you can solve the problem by not being a gun owner, or destroying all your magazines, or guns that hold more than 10 rounds.

  24. I just wish Glock and the other manufacturers had the courage that Barrett has.

    “I’m sorry, but since civilians can’t have more than a 10 round mag, we won’t sell your police force anything bigger. And no parts, repairs, or in fact any customer service at all. When you change your mind, please let us know…”

    Because if all a full cap mag is good for is murdering lots of peoples why should the cops need them?

  25. The only “common ground” we’ll ever share with people that endorse laws like this is the grave yard. Passage of laws like this only assure that some will end up there sooner rather than later.

  26. And WHY should — and how could — 100,000,000+ gun owners have to PROVE to a government bureaucrat that they owned a normal-capacity mag before a (proposed) future ban date?

    “Please provide receipts”. Is Carolyn McCarthy nuts? WHO KEEPS RECEIPTS?

    Rep. McCarthy is a menace to our liberty, and she must be defeated in her next election.

  27. Mailing photos to yourself? Enduring trusts? Receipts?

    A recurring problem with the Right is: when the opposition enacts prohibitions, our response is abject, albeit creative, compliance – instead of proliferation of suits and other more forceful denials of unconstitutional powers.

    The AWB marked a whole decade of whining about putting birdcages on barrels, instead of bringing the consequences home to the petty tyrants. Lots of energy spent, but to far less results than could have been achieved.

  28. Matt: Yep, notarized proof of magazine ownership ought to do the trick … but what if you forget one? Back in the ’90s I think Neal Knox noted while cleaning out some part of his house that he was found one or more “high capacity” magazines he’d forgotten he’d ever owned.

    Plus there’s the nasty problem of planting evidence when you make things and not actions illegal.

  29. McCarthy’s tactics are clear. Get language for a total ban, get enough squishy Republicans to “compromise” back to language of the 1994 ban, pass the bill, and get a gun control victory.

    They want any victory they can get.

  30. “And WHY should — and how could — 100,000,000+ gun owners have to PROVE to a government bureaucrat that they owned a normal-capacity mag before a (proposed) future ban date?”

    Because the bureaucrat and his cohorts will throw the ones violating the law in jail (and shoot them if they resist) if they don’t. And because the rest of them won’t do a damn thing about it.

  31. ctdonath Said (January 20th, 2011 at 8:11 pm):
    Because the bureaucrat and his cohorts will throw the ones violating the law in jail (and shoot them if they resist) if they don’t.

    I’m pretty sure I understand where you’re coming from, but I’d like to hope we don’t get too carried away here.

  32. Carl from Chicago Said,
    I’m pretty sure I understand where you’re coming from, but I’d like to hope we don’t get too carried away here.

    Yah, but he does have a point there. Can’t argue the truth in his comment.

  33. I’m firmly convinced they are just looking for ways to turn us all into felons, so they can then take away all our guns. THIS would do it…

  34. If they make us all felons, we will lose not only our guns, but our votes – its a twofer!

  35. Does this not violate Article I, Section 9.3 of the Constitution which BANS any passage an “ex post facto law”; that is to make something illegal and penalize it which was done before the bill? But since when have the “lealized version” of criminals cared about that??

  36. No… because you’re not punishing past behavior. If the law said anyone who has possessed one of these is guilty of a crime, then it would be ex-post facto, but it’s only your continuing possession that’s a crime.

  37. I don’t think this bill will pass in the house, but if something like this does eventually pass, I would suggest engraving serial numbers on all your standard capacity magazines like your initials, date of birth then a number: ABC11031982001, ABC11031982002, etc.

    Then as others suggested, make a dated photgraphic record, and notarized affidavit from you and two witnesses listing each magazine serial number, and stating you legally possessed it on such and such date.

    I think that would establish a reasonable doubt.

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