Safe Havens

The term “firearm” “does not include an antique firearm.”[1235]  Title 18 U.S.C. § 921(a)(16) defines that term as follows:

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.

In a criminal case, the government must prove beyond a reasonable doubt that the firearm in question is not an antique firearm once the defendant produces evidence sufficient to raise genuine dispute about whether the firearm is antique.[1236]  Unfortunately, however, the BIA has ruled respondent bears the burden of proof on this issue, even in deportation proceedings.[1237]  This flies in the face of the general rule that the government bears the burden of proof of every element of a ground of deportation.  See § 5.24, supra.

For purposes of the firearm deportation ground, if the record of conviction establishes that the state firearms conviction involved a weapon that fits within the Antique Firearm Exception defined in the federal statute, the weapon involved does not constitute a “firearm.”  Moreover, if the record of conviction does not make clear whether the firearm involved falls within the Antique Firearm Exception in the federal statute, the DHS cannot establish the firearms deportation ground, since it bears the burden of proof.[1238] 

[1235] 18 U.S.C. § 921(a)(3).

[1236] United States v. Washington, 17 F.3d 230 (8th Cir. 1994), cert. denied, 513 U.S. 852 (1994); United States v. Smith, 981 F.2d 887 (6th Cir. 1992); United States v. Laroche, 723 F.2d 1541 (11th Cir. 1984), cert. denied, 467 U.S. 1245 (1984); United States v. Smith, 685 F.Supp. 1523 (D. Ore. 1988), aff’d in part, 876 F.2d 898 (9th Cir. 1989), cert. denied, 493 U.S. 869 (1989).  But see United States v. Green, 515 F.Supp. 517 (D. Md. 1981) (replica of 1859 black powder percussion pistol, which fell within statutory definition of “antique firearm,” but which was functional, was both a “firearm” and a “handgun” for purposes of prosecution for felon in possession of firearm, even though ATF had interpreted the statute not to apply to antique firearms, which do not utilize fixed ammunition).

[1237] Matter of PF, 20 I. & N. Dec. 661 (BIA 1993) (“In the absence of any evidentiary showing by the respondent that the weapon was an antique firearm, we find that the conviction record establishes that the respondent used a “firearm,” as defined by 18 U.S.C. § 921(a) (1988), in the commission of the armed robbery.  See United States v. Laroche, 723 F.2d 1541 (11th Cir.), cert. denied, 467 U.S. 1245 (1984).”).

[1238] See Matter of Paulus, 11 I. & N. Dec. 274 (BIA 1965) (record of conviction failing to identify the particular controlled substance meant that the INS had not met its burden of proof from the record that the substance at issue actually was a controlled substance on the federal controlled substances list).