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Can a felon legally own a Cap & Ball Revolver?

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  • philipgonzales3

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    Gee, why not just talk to an attorney?

    Wouldn't that take speculation and opinions out of the equation?

    If an attorney told me it was legal to possess a certain cap & ball revolver would that stop an officer of the law from speculating and using his judgement (opinion) to lock me up? I was hoping to find some good news of others who may be in my same situation or something that gives me definitive hope that possessing an antique firearm would be risk free for me. Unfortunately it seems that even if an attorney gives me the go ahead I do not feel confident enough to risk my rear end over it.
    DK Firearms
     

    Axxe55

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    If an attorney told me it was legal to possess a certain cap & ball revolver would that stop an officer of the law from speculating and using his judgement (opinion) to lock me up? I was hoping to find some good news of others who may be in my same situation or something that gives me definitive hope that possessing an antique firearm would be risk free for me. Unfortunately it seems that even if an attorney gives me the go ahead I do not feel confident enough to risk my rear end over it.

    Dude, even clean law abiding gun owners run that risk.

    Unfortunately, I doubt that you are going to find very many convicted felons hanging out on gun forums.

    So for the most part, such questions are more of an abstract, or theoretical discussion, rather than legal advice.

    Everything posted, for the most part, is speculation and opinions.
     

    TexasRedneck

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    If an attorney told me it was legal to possess a certain cap & ball revolver would that stop an officer of the law from speculating and using his judgement (opinion) to lock me up?

    Which is exactly why I mentioned joining Texas Law Shield and asking them. They WILL come to you to fight any illegal arrest, and will best know how to handle the situation.
     

    majormadmax

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    But this is still illegal at the Federal level.

    I know that, but I would challenge you to find a single case where the Texas statute regarding gun possession by convicted felons was ever challenged based on Federal law.

    In fact, the US Supreme Court has ruled that state need not enforce Federal laws that the state has determined to be unconstitutional; nor may Congress mandate that states enact specific laws.

    In the 1997 case, Printz v. United States, the Court ruled that the Federal government could not command state law enforcement authorities to conduct background checks on prospective handgun purchasers.

    State (and local) governments also have the right to be free from unwanted regulation imposed at the Federal level. In New York v. United States, 505 U.S. 144, 166 (1992), the Court noted "we have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts."

    BLAB: States, not the Federal government, are the principal purveyors of criminal codes. Congress' authority to enact criminal laws is greatly circumscribed by the Constitution.

    But again, this is why the best advice given in this thread is to talk with a lawyer!
     

    Spcwolf

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    Get a lawyer, probably one that does criminal law.

    If I was in your shoes I would get a smooth bore musket, and a Kentucky rifle.

    And a cap and ball revolver in 36cal. You can probably load the revolver up to similar performance as a 38spc. Plenty of people have died to that caliber.
     

    Rhino

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    If an attorney told me it was legal to possess a certain cap & ball revolver would that stop an officer of the law from speculating and using his judgement (opinion) to lock me up? I was hoping to find some good news of others who may be in my same situation or something that gives me definitive hope that possessing an antique firearm would be risk free for me. Unfortunately it seems that even if an attorney gives me the go ahead I do not feel confident enough to risk my rear end over it.
    My non-lawyer 2 cents are this:

    LEGAL, CHL (at the time, now LTC) holders including a US Army Mst. Sgt. who knew their rights and were actively protesting in Texas for Constitutional Carry were arrested with their black powder weapons, and their rights were held in jeopardy for months. Most of the cases were dismissed quietly, but part of the reason for that was so that the jurisdictions could avoid precedent. I wouldn't want you to think that you're likely to beat the ride, and a badly defended legal situation with a felon and an antique might actually bad for those who might have a chance of winning such a case. I'm all for you having the right to defend yourself, but I wouldn't open carry it and I'd be pretty cautious about who knew I had possession of it. I almost got arrested once carrying a pre-1899 cartridge .38 by a Texas DPS guy. He probably didn't actually want to arrest me, but told me straight up that he could arrest me on suspicion of carrying illegally (open carrying at the time) and that he didn't have a database on him to look up and verify if I was telling him the truth about it's legality and that it was really as old as I said it was. Practically speaking, too, a cap and ball revolver is fairly high-maintenance if you want it to be reliable and I for one would be skeptical of leaving the black powder (or Pyrodex or other substitutes) sitting in the revolver for a long time and how reliable it would be if you did. I personally store mine unloaded and without the percussion caps on it, so it's usefulness to you in a fast-breaking self defense situation would likely depend on how you feel about keeping it loaded all the time.
     
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    Quixote Six

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    If an attorney told me it was legal to possess a certain cap & ball revolver would that stop an officer of the law from speculating and using his judgement (opinion) to lock me up? I was hoping to find some good news of others who may be in my same situation or something that gives me definitive hope that possessing an antique firearm would be risk free for me. Unfortunately it seems that even if an attorney gives me the go ahead I do not feel confident enough to risk my rear end over it.

    Three things. (1) It is not illegal under either Texas state of federal law for a person convicted of a crime with a punishment of more than one year in jail (a prohibited person) to possess an antique firearm - that is, one made before 1899, or a replica of said antique firearm (no matter when made) if the replica does not use rimfire or conventional centerfire fixed ammunition.

    (2) Even though it is legal for a a prohibited person to possess an true antique firearm (not a replica) that uses center or rimfire ammunition, the possession of that ammunition is still illegal. However, a prohibited person may acquire and possess black powder in quantities not exceeding fifty pounds if it is intended to be used solely for sporting, recreational, or cultural purposes in antique firearms or cap and ball replicas of antiques.

    One and two above apply only in Texas -- other states (New York and California immediately come to mind) that still consider antiques and replicas of antiques firearms and it would be illegal in these states for a prohibited person to possess them.

    (3) Finally, something not generally known is that if you received probation and were discharged at the end of that probation, you may have been granted what is called "judicial clemency" under Article 42.12 of the Texas Code of Criminal Procedure. If you received probation, you need to look at the order of discharge and see what it says. A grant of judicial clemency will generally read like this, "...all conditions of probation have been satisfactorily fulfilled, it is accordingly considered, Ordered and Adjudged by the Court that the Judgment of Conviction heretofore entered against the Defendant in this case be and the same is hereby set aside, the indictment dismissed, and the Defendant discharged from said probation, and the Defendant is hereby released from all penalties and disabilities resulting from the Judgment of Conviction in this case." Quite often folks never know that when they were discharged under TCCP 42.12, they were relieved of all disabilities, including the right to possess a firearm.

    There are cases under both Texas State and federal law, as well as an attorney general opinion, stating that this is not a conviction and does not make a person who received judicial clemency a prohibited person. In fact, DPS will issue a license to carry to such a person.

    And finally, I know this because I am an attorney and had this discussion with DPS for two clients -- and NOW DPS no longer considers a person granted judicial clemency a prohibited person and will issue them a LTC.

    But as stated, lots of police do not know the law and you may beat the crime but not the ride. There is, however, a lawsuit remedy called false arrest.
     

    jrbfishn

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    My non-lawyer 2 cents are this:

    LEGAL, CHL (at the time, now LTC) holders including a US Army Mst. Sgt. who knew their rights and were actively protesting in Texas for Constitutional Carry were arrested with their black powder weapons, and their rights were held in jeopardy for months. Most of the cases were dismissed quietly, but part of the reason for that was so that the jurisdictions could avoid precedent. I wouldn't want you to think that you're likely to beat the ride, and a badly defended legal situation with a felon and an antique might actually bad for those who might have a chance of winning such a case. I'm all for you having the right to defend yourself, but I wouldn't open carry it and I'd be pretty cautious about who knew I had possession of it. I almost got arrested once carrying a pre-1899 cartridge .38 by a Texas DPS guy. He probably didn't actually want to arrest me, but told me straight up that he could arrest me on suspicion of carrying illegally (open carrying at the time) and that he didn't have a database on him to look up and verify if I was telling him the truth about it's legality and that it was really as old as I said it was. Practically speaking, too, a cap and ball revolver is fairly high-maintenance if you want it to be reliable and I for one would be skeptical of leaving the black powder (or Pyrodex or other substitutes) sitting in the revolver for a long time and how reliable it would be if you did. I personally store mine unloaded and without the percussion caps on it, so it's usefulness to you in a fast-breaking self defense situation would likely depend on how you feel about keeping it loaded all the time.
    Even if it was a qualifying replica but hd a conversion cylinder to shoot a cartridge, it is against the law.

    but only if the replica does not use rim fire or center fire ammunition.

    Sent by an idjit coffeeholic from my SM-G892A using Tapatalk
     

    Rhino

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    Even if it was a qualifying replica but hd a conversion cylinder to shoot a cartridge, it is against the law.

    but only if the replica does not use rim fire or center fire ammunition.

    Sent by an idjit coffeeholic from my SM-G892A using Tapatalk
    Mine was a genuine pre-1988 "Lemon Squeezer" which IS legal. You are correct about modern replicas - they can only be BP cap and ball or flintlock.
     

    jrbfishn

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    Looked a again.
    You are right. It says a replica can not shoot a cartridge. It does not specify if a genuine antique can or not.
    So, technically, if it is a genuine antique from that time period that shoots a cartridge, it is legal and does not qualify as a firearm.


    Sent by an idjit coffeeholic from my SM-G892A using Tapatalk
     

    Rhino

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    Looked a again.
    You are right. It says a replica can not shoot a cartridge. It does not specify if a genuine antique can or not.
    So, technically, if it is a genuine antique from that time period that shoots a cartridge, it is legal and does not qualify as a firearm.


    Sent by an idjit coffeeholic from my SM-G892A using Tapatalk
    I never chose to fire the thing to find out if THAT was a safe idea. Best I've heard is to get set up to reload. The .38 used 38 S&W NOT 38 Special and I was always wondering if I shot it with modern ammo if it would be safe. When the group I was with was carrying it was always considered that we could be arrested.
     

    jrbfishn

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    AFAIK, it would not be safe. Smokeless powder has a much higher pressure curve. In my black powder conversions I can shoot 35grn of BP but have to load down to cowboy action loads for smokeless.

    Sent by an idjit coffeeholic from my SM-G892A using Tapatalk
     

    jrbfishn

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    For my Remington 44s with .45 colt conversions;
    Small pistol primers
    35grns 3fg BP
    Enough wads to compress the powder
    .452 lead conical bullet.
    Most are surprised at the recoil. They think it will be like the movies where they shoot and it doesn't recoil.

    Sent by an idjit coffeeholic from my SM-G892A using Tapatalk
     

    Rhino

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    jrbfishn

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    I have found BP guns typically have a little deeper rifling for softer lead bullets than modern guns. You also have to be careful if you buy lead bullets to reload for BP because they are made harder for use in modern cartridges with higher pressures.

    Sent by an idjit coffeeholic from my SM-G892A using Tapatalk
     

    Axxe55

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    Don't think I've ever read where the reformed felon tells us what the lawyer told him.
    It's not illegal to talk to a lawyer, so why not just do it.

    Well, the OP hasn't replied since last Saturday. I have to think he wasn't getting the answers he was looking for here.

    General consensus was among the replies given, that he consult an attorney.
     
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