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Question about the word "replica" in Texas law.
- Thread starter Matt M
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To be fair, it doesn't seem that's the way it's interpreted most commonly. Most of the time the "and" seems to be ignored.
One other thing to remember is that even if it's not considered to be a firearm, it is still considered to be a deadly weapon under TX Law. Here's the definition from Section 1.07 of the Penal Code:
For example, there's no law against screwdrivers in TX, but if you stab someone with one, you'll still be charged with assault with a deadly weapon.
I haven't read enough of TX law to be able to comment on the full ramifications of that fact. However, it would appear from the law that it would be illegal to carry one into a liquor store, for example. The presence of a BP firearm might also be used to justify a disorderly conduct charge, depending on the circumstances, or to increase the offense level of another crime.
IMO, if you can get a permit, you're better off in many ways getting the permit and carrying a modern firearm. Not the least of which is that if you get caught with the BP firearm in a situation where it irritates the authorities, they may get really creative trying to figure a way to make sure you're way more irritated than they are before it's all over.
One other thing to remember is that even if it's not considered to be a firearm, it is still considered to be a deadly weapon under TX Law. Here's the definition from Section 1.07 of the Penal Code:
"Deadly Weapon" means:
(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.
(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.
For example, there's no law against screwdrivers in TX, but if you stab someone with one, you'll still be charged with assault with a deadly weapon.
I haven't read enough of TX law to be able to comment on the full ramifications of that fact. However, it would appear from the law that it would be illegal to carry one into a liquor store, for example. The presence of a BP firearm might also be used to justify a disorderly conduct charge, depending on the circumstances, or to increase the offense level of another crime.
IMO, if you can get a permit, you're better off in many ways getting the permit and carrying a modern firearm. Not the least of which is that if you get caught with the BP firearm in a situation where it irritates the authorities, they may get really creative trying to figure a way to make sure you're way more irritated than they are before it's all over.
Bartholomew Roberts
Moderator
In addition to the points already raised (particularly those concerning a "deadly weapon"), you might want to give the case of Cantu v. State a read since it addresses the antique/curio exemption to the definition of firearm.
In that case, a man was convicted of carrying a short-barrelled shotgun. The man's defense was that the shotgun was actually manufactured prior to 1899, it was not a firearm and he could not be convicted of carrying a short-barrelled firearm. The court's reasoning in that case shows how very narrowly that exemption is interpreted (especially if there is incontrovertible evidence that you were firing said "non-firearm" at another person from your vehicle at 2am).
In that case, a man was convicted of carrying a short-barrelled shotgun. The man's defense was that the shotgun was actually manufactured prior to 1899, it was not a firearm and he could not be convicted of carrying a short-barrelled firearm. The court's reasoning in that case shows how very narrowly that exemption is interpreted (especially if there is incontrovertible evidence that you were firing said "non-firearm" at another person from your vehicle at 2am).
dakota.potts
New member
Not necessarily. State definitions of firearms don't have to match federal definitions. So something that doesn't require an FFL can be considered a firearm by a state
When you buy a firearm (as defined by federal law) you have to ship it and take possession of it in accordance with federal law.
Texas' definition of a firearm has nothing whatsoever to do with that. Texas' definition of a firearm only affects Texas law and offenses defined by Texas law.
Texas' definition of a firearm has nothing whatsoever to do with that. Texas' definition of a firearm only affects Texas law and offenses defined by Texas law.
I'm not asking about the definition of "Firearm" by Texas law. I'm am asking about the word "replica". If it is being made and marketed by major replica manufacturers as a replica, sold by numerous ffl dealers as a replica, and the ATF say it is a replica, where is it written that Texas claims differently?
What does that even mean? It's not like there's a resource out there that provides all the differences between Texas law and federal law. You have to look at both laws and see how they differ....where is it written that Texas claims differently?
Ok, clearly somewhere things have gone off the rails and we're talking past each other in a big way.
Let's start over with this question:
What did you mean by this question?Matt M said:IF it is classified as a firearm does that mean that it and guns like it, are being shipped and sold illegally?
What is "it"?
What classifies "it" as a firearm? Texas statutes, Texas case law or federal law?
What laws are you concerned would be violated by shipping "it"? Texas statutes or federal law?
Aguila Blanca
Staff
There are laws that pertain to selling.
There are laws that pertain to shipping.
There are laws that pertain to storing.
There are laws that pertain to carrying.
The definitions that apply to one of the above may or may not apply to the others.The question of "replicaness" (for lack of a better term) was your original question. So far, nobody has offered a definitive answer, other than "Ask a Texas attorney." I believe that remains the only good answer. IMHO it all hinges on whether there can be a "replica" of something that never existed in history.
There are laws that pertain to shipping.
There are laws that pertain to storing.
There are laws that pertain to carrying.
The definitions that apply to one of the above may or may not apply to the others.The question of "replicaness" (for lack of a better term) was your original question. So far, nobody has offered a definitive answer, other than "Ask a Texas attorney." I believe that remains the only good answer. IMHO it all hinges on whether there can be a "replica" of something that never existed in history.
Frank Ettin
Administrator
And the answer is that it all depends. See post 32:Matt M said:...I have always heard is the gun... so I don't know, which is why I ask.
Aguila Blanca said:There are laws that pertain to selling.
There are laws that pertain to shipping.
There are laws that pertain to storing.
There are laws that pertain to carrying.
The definitions that apply to one of the above may or may not apply to the others....
Yes, and I was following along quite nicely until I tried to answer your question--the one I quoted.Did you read the first post?
I'll try to answer it again.
Your replica revolver is certainly NOT a firearm under federal law and therefore it is not regulated as a firearm under federal law. It can be shipped and sold under federal law as if it were merely a chunk of metal without any of the considerations that would normally be required for a firearm.
None of that has anything to do with whether or not it is a firearm under TX law. Even if it were determined to be a firearm under TX law, that would not affect the legality of shipping or selling it under federal law. Furthermore, far as I know, TX has no laws regarding the shipment of firearms nor any requirements that firearm sales must be conducted through a dealer so it may be shipped or sold without going through a dealer under TX law EVEN if we assume that it might be a firearm under TX law.
In addition to all that, the definition of firearm (and replica) under federal law is different from the definition of firearm (and replica) under TX law. So the fact that it is or isn't a replica under TX law has no bearing on whether or not it is or isn't a replica under federal law. As long as it's not a firearm under federal law (and it isn't) it can be legally shipped and sold without a dealer being involved regardless of what TX says it is.
In addition to all that, the definition of firearm (and replica) under federal law is different from the definition of firearm (and replica) under TX law.
So then you claim to know what the definition of replica is under TX law, as well as the definition of what replica is under federal law. Please enlighten us.
Frank Ettin
Administrator
That's enough. The OP needs to find and pay a lawyer, and we need to get off this merry-go-round.
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