August 14, 2012
ASSAULT WEAPONS LEGISLATION
By: Christopher Reinhart, Chief Attorney
You asked for a summary of legislation pertaining to assault weapons since 1993.
In 1993, the legislature prohibited possessing, selling, or transporting assault weapons, with limited exceptions. The 1993 act also gave those who lawfully possessed an assault weapon before October 1, 1993, nine months to apply for a certificate of possession to continue to possess the weapon. The act made a number of other changes regarding assault weapons (PA 93-306).
Since 1993, only five acts addressed assault weapons.
1. A 1994 act extended the deadline for those who lawfully possessed an assault weapon before October 1, 1993 to apply for a certificate of possession.
2. A 1998 act established a mechanism for the Department of Public Safety (DPS, now the Department of Emergency Services and Public Protection) to exchange information with the Department of Mental Health and Addiction Services (DMHAS) about people committed to psychiatric hospitals who also have permits to sell or carry handguns, handgun eligibility certificates, or certificates to possess assault weapons.
3. A 2001 act expanded the definition of assault weapons.
4. A 2002 act exempted possession of certain types of assault weapons from the ban.
5. A 2007 act required the lawful owner of an assault weapon to report its loss to police in the same way the law already required him or her to report its theft. The act also added penalties for failing to report a weapon's loss or theft.
Below we describe the major provisions of each of these acts.
PA 93-306—ASSAULT WEAPONS BAN
This act generally banned possessing and transferring assault weapons. It created a number of crimes related to assault weapons, as shown in Table 1.
Table 1: Assault Weapon and Related Crimes Created by PA 93-306
Possessing an assault weapon
● Class D felony (up to five years in prison, a fine of up to $5,000, or both) with a one-year mandatory minimum sentence
● Class A misdemeanor (up to one year in prison, a fine of up to $2,000, or both) if the person proved lawful possession before October 1, 1993 and otherwise complied with the act
Distributing, transporting, keeping, offering for sale, or giving an assault weapon
Class C felony (up to 10 years in prison, a fine of up to $10,000, or both) with a two-year mandatory minimum and an additional six-year mandatory minimum sentence for selling, transferring, or giving the weapon to a minor under age 18
Buying a firearm intending to transfer it to someone he of she knows or has reason to believe is prohibited from purchasing the firearm
Up to five years in prison, a fine of up to $1,000, or both
Person prohibited from purchasing or possessing a firearm soliciting, employing, or assisting someone to engage in an illegal firearm transfer
● Class B misdemeanor (up to six months in prison, a fine of up to $1,000, or both)
● Class A misdemeanor if the violation involves the transfer of more than one firearm
● Class D felony if the person had been convicted of a felony in the five-year period prior to any of these violations
Using, threatening to use, displaying, or purporting to have an assault weapon while committing a class A, B, or C felony
Mandatory minimum eight-year sentence in addition and consecutive to any imprisonment for the felony
The act also added the use of an assault weapon in a crime punishable by death to the list of aggravating circumstances justifying a death sentence.
Definition of Assault Weapon
The act designated as an assault weapon:
1. any of a list of named firearms;
2. selective-fire firearms capable of fully automatic, semi-automatic, or burst fire at the option of the user; and
3. parts either designed or intended to convert a firearm into an assault weapon or from which an assault weapon may be rapidly assembled if they are in one person's possession.
The act exempted permanently inoperable firearms.
Certificates of Possession
The act allowed anyone who lawfully possessed an assault weapon before October 1, 1993 to apply by July 1, 1994 to DPS for a certificate of possession. A certificate of possession allowed the owner of an assault weapon to possess it:
1. at (a) his or her residence, business, or property or (b) another person's property with permission;
2. at certain target ranges or licensed shooting clubs;
3. while attending certain types of firearms exhibitions, displays, or educational projects; or
4. while transporting it, in accordance with the act, between any of the places mentioned above or to a licensed dealer for servicing or repair.
When an assault weapon is being transported between these locations, the act prohibited (1) carrying it loaded and concealed from view or (2) knowingly carrying it in a vehicle when it was (a) loaded or (b) unloaded unless it was in the vehicle's trunk or a container inaccessible to the vehicle's occupants. The act punished violations with up to three years in prison, up to a $500 fine, or both.
Beginning January 1, 1994, the act prohibited anyone with a certificate from selling an assault weapon to anyone in the state except a licensed firearm dealer or otherwise transferring it except by bequest or intestate succession or to DPS or a police department. The act required an assault weapon owner who sells or transfers the weapon to a licensed gun dealer to execute a certificate of transfer at the time of sale or transfer and send it to DPS.
The act included a number of exceptions to the ban on possession and transfer of assault weapons. It allowed:
1. someone to transfer by bequest or intestate succession an assault weapon for which a certificate had been issued;
2. anyone who inherited an assault weapon for which a certificate had been issued or an estate executor or administrator to possess and dispose of the assault weapon as specified in the act;
3. the Department of Correction (DOC), DPS, police departments, and the military forces to purchase assault weapons for official use and their employees or members to possess the weapons; and
4. licensed gun dealers to (a) accept assault weapons for servicing from anyone with a certificate for the weapon; (b) transfer assault weapons for servicing under certain circumstances; and (c) transport lawfully possessed weapons between dealers or out-of-state, display them at gun shows licensed by a state or local government entity, or sell them to out-of-state residents.
The act also:
1. allowed an individual to arrange to relinquish an assault weapon to a police department or DPS;
2. allowed temporary transfer or possession of an assault weapon for which a certificate had been issued for certain out-of-state events; and
3. required anyone who moved into the state in lawful possession of an assault weapon to sell it to a licensed gun dealer, make it permanently inoperable, or take it out of state.
The act specified that its provisions should not be construed to prohibit manufacturers from manufacturing or transporting the weapons in the state for sale (1) out-of-state or (2) in-state to agencies which are allowed to purchase assault weapons.
The act required anyone whose assault weapon was stolen to report the theft to a law enforcement agency within 72 hours after he or she discovered or should have discovered the theft.
The act took effect on October 1, 1993.
PA 94-1, JULY SPECIAL SESSION—EXTENDING DEADLINES FOR CONTINUED POSSESSION
1. extended, from July 1 to October 1, 1994, the deadline for someone who lawfully possessed an assault weapon before October 1, 1993 to apply for a certificate of possession to keep the firearm legally;
2. gave people in the military, who could not apply by the deadline because they were away on official duty, 90 days after returning to the state to apply for a certificate; and
3. gave people in the military, who legally possessed an assault weapon and transferred into the state after October 1, 1994, 90 days to apply for a certificate.
PA 98-129—EXCHANGING INFORMATION REGARDING MENTAL HEALTH
This act established a mechanism for DPS to exchange information with DMHAS about people committed to psychiatric hospitals who have permits to sell or carry handguns, handgun eligibility certificates, or certificates to possess assault weapons.
Among other things, the act required:
1. probate courts committing someone to a hospital for psychiatric disabilities after May 31, 1998 to, within three business days, provide a copy of the order to the DMHAS commissioner;
2. the DMHAS commissioner to provide information from commitment orders to DPS;
3. the DMHAS commissioner to (a) obtain from the DPS commissioner the permit, certificate, or application status of everyone subject to a commitment order and (b) inform the DPS commissioner of the commitment status of any of these individuals;
4. DMHAS to inform psychiatric hospitals of any information from DPS about the permit or certificate status of anyone committed to the hospital in order to help the hospital consider treatment options; and
5. the DPS commissioner to verify, with information from DMHAS, whether anyone who applied after September 30, 1998 to get or renew a permit or certificate was committed by the probate court to a psychiatric hospital during the preceding 12 months.
The act took effect on October 1, 1998.
PA 01-130—BANNING ADDITIONAL WEAPONS
This act added the following to weapons designated as assault weapons:
1. semiautomatic rifles and pistols that can accept a detachable magazine and have certain features;
2. semiautomatic shotguns with certain features; and
3. part or parts in one person's possession either designed or intended to convert any firearm into one of the newly covered assault weapons or from which one may be assembled rapidly.
The act banned any of the newly designated assault weapons manufactured after September 12, 1994. It allowed the transfer and possession of those legally manufactured before September 13, 1994 by stipulating that it must not be construed to limit their transfer or require their registration.
The act took effect on October 1, 2001.
PA 02-120—EXCEPTIONS TO THE BAN
This act added to the exceptions to the assault weapons ban. It exempted possession (but not other transactions) of Auto-Ordnance Thompson type; Avtomat Kalashnikov AK-47 type; and MAC-10, MAC-11, and MAC-11 Carbine type assault weapons by anyone who:
1. purchased legally and in good faith, or otherwise obtained title to, any of these weapons between October 1, 1993 and May 8, 2002;
2. was not otherwise disqualified or prohibited from possessing them;
3. notified DPS that he or she possessed the weapon by sending the department a copy of the proof of purchase for the weapon; and
4. provided DPS with a state or federal form for the weapon or a sworn affidavit that it was purchased or acquired legally.
The act required DPS to issue a certificate of possession for these weapons, gave military personnel stationed out-of-state on official duty 90 days after returning to the state to file the required notice, and provided an affirmative defense from prosecution for possessing any of these weapons under certain circumstances.
The act took effect on October 1, 2002.
PA 07-163—LOST OR STOLEN WEAPONS
This act required the lawful owner of an assault weapon to report its loss to police in the same way the law already required him or her to report its theft. As for a theft, the act required the owner to report a weapon's loss to police within 72 hours after he or she discovered or should have discovered the loss. The act also extended these provisions to lawful owners of any firearm.
The act added penalties for failing to report a weapon's loss or theft, making:
1. a first-time unintentional failure to report within the deadline an infraction, punishable by a fine of up to $90;
2. a subsequent unintentional failure a class D felony; and
3. an intentional failure to report a class C felony.
The act specified that a first-time violator does not lose the right to get or possess a permit to possess or sell handguns.
The act took effect October 1, 2007.