DV and black powder

Question
I have a DV charge of 4th degree assault from Washington state it was "dismissed" after I entered a plea of guilty and did my 2 year probation. I don`t have any other charges for anything on my record. I now live in Arizona can I have,use a black powder replica type firearm? I have talked to NICS,ATF,Pima Co. sheriff,NRA,Attorneys and I get different answers. I`ve researched this at great lengths and feel I`m OK to possess said weapon but........ jail is bad ju ju for me and my family

Answer
Mike,

Thanks for your question.  I'm not surprised that you have gotten confusing answers.  This is a very confusing area of law with conflicts and silences in the legislation that make things difficult to figure out.  

Under federal law, specifically 18 USC 922 (d) 9. - you are classified as a "prohibited possessor".  The section specifically applies to anyone convicted of "misdemeanor crime of domestic violence".  

However, also under federal law antique black powder guns such as muzzle loader made prior to 1898 or 'replica' guns manufactured at any time are exempt from the laws associated with firearms under 18 USC 922.  

The specific language is as follows:

16) 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.

So, under federal law, it would be my opinion that you would be just fine.

However, I cannot find anything that discusses how black powder guns are handled under Arizona law.  

Under Arizona law, if you are a "prohibited possessor", you may not possess ANY firearm.  The definition below comes directly from the Arizona Revised Statutes.  It can be found under Section 13-3101 (A) and states:

6. "Prohibited possessor" means any person:
(a) Who has been found to constitute a danger to himself or to others pursuant to court order under section 36-540, and whose court ordered treatment has not been terminated by court order.
(b) Who has been convicted within or without this state of a felony or who has been adjudicated delinquent for a felony and whose civil right to possess or carry a gun or firearm has not been restored.
(c) Who is at the time of possession serving a term of imprisonment in any correctional or detention facility.
(d) Who is at the time of possession serving a term of probation pursuant to a conviction for a domestic violence offense as defined in section 13-3601 or a felony offense, parole, community supervision, work furlough, home arrest or release on any other basis or who is serving a term of probation or parole pursuant to the interstate compact under title 31, chapter 3, article 4.
(e) Who is a prohibited possessor under 18 United States Code section 922(g)(5), except as provided by 18 United States Code section 922(y) -- (This last subsection (e) relates to persons not legally in the United States).

Under Arizona law, you are not specifically called out as a "prohibited possessor", apparently relying on federal law to cover the prohibition.  The problem is that I cannot find anything in any Arizona statute that speaks to the issue of 'black powder' guns.

According to Arizona law a "firearm" is defined in 13-3101 (A) 4) -- "Firearm" means any loaded or unloaded handgun, pistol, revolver, rifle, shotgun or other weapon that will expel, is designed to expel or may readily be converted to expel a projectile by the action of an explosive. Firearm does not include a firearm in permanently inoperable condition."

Under this definition, a black powder gun is definitely a "firearm', and there is no language that I can find that excludes antique, black powder, muzzleloader or other 'replica' guns.

Here is my take on it.  Please bear in mind that since I am not an attorney licensed to practice law, I cannot give you legal advice.  I can give you what I consider to be an informed opinion.

SInce Arizona law is silent and you are OK under Federal law, I would say that you are probably OK using a black powder gun.

Having said that, if some unforeseen circumstances develop, you may find yourself in a situation where a Law Enforcement officer does not agree and you might become a 'test case'.  As long as you are not doing anything illegal or dangerous, you would most likely never have this problem.  

I was able to find one piece of relevant case law regarding a court case in Florida regarding possession of a black powder gun by a convicted felon.  The link to the case is here:

http://www.romingerlegal.com/floridacourts/court_opinions2/5D03-3270.op.html

In this case, the court found that the defendant was in fact guilty of possession of a firearm which was a violation of Florida law and did not recognize the 'replica' statute in his particular case.  There was also an interesting dissenting opinion that I would recommend that you take  a look at since it crystalize the argument in favor of the opinion you seem to have come to...

You just need to understand that when the law is silent on a particular issue, it is up to the courts to make a determination.  Unfortunately, many decisions from the bench are influenced by the personal viewpoints of the judges.  

I normally wouldn't have even mentioned this last part except for your 'jail being bad ju-ju' comment.  You ultimately need to decide what the risk/reward factors are and make your decision.

I realize that this was a very LONG answer, but I wanted to give you as much factual info as I could and why I came to the opinion I did...

I hope this helps and wish you the best of luck...

Regards,

Doug