Antique and Blackpowder Firearms

Criminal Code section (CC s.) 84(3) says, in part:

  • For the purposes of (CC) sections 91 to 95, 99 to 101, 103 to 107 and 117.03 of this Act and the provisions of the Firearms Act, the following weapons are deemed not to be firearms:

(a) any antique firearm

Therefore, no FAC, licence, ATT, ATC, registration certificate, transfer procedure, or documentation is required for any transfer, transportation, or possession of any “antique firearm.”  Also, as CC s.  84(3) says, nothing in the Firearms Act applies to any “antique firearm.”

That also applies to an “antique firearm” that is also a “prohibited firearm” or a “restricted firearm.”  Yes, that odd pairing can and does happen!

CC s.  84(1) “restricted firearm” says, in part:

  • 84.  (1)…  “restricted firearm” means (a) a handgun that is not a prohibited firearm…

Therefore, any handgun that is an “antique firearm” is also a “restricted firearm” unless it is both an “antique firearm” and a “prohibited firearm.”

 

CC s.  84(1) “prohibited firearm” says, in part:

  • 84.  (1) “prohibited firearm” means (a) a handgun that

(i) has a barrel equal to or less than 105mm [4.14″] in length, or

(ii) is designed or adapted to discharge a 25 or 32 calibre cartridge…

Therefore, any handgun that is an “antique firearm” is also a “prohibited firearm” if it has a barrel less than 105mm/4.14″ long, regardless of whether it is a muzzle-loading handgun or a cartridge-firing handgun, and regardless of calibre.

Also, any handgun that is an “antique firearm” is also a “prohibited firearm” if it is “designed or adapted” to use “a 25 or 32 calibre cartridge.”

So which firearm is an “antique firearm” today?

CC s.  84(1) defines “antique firearm” this way:

  • 84.  (1) “antique firearm” means:

(a) any firearm manufactured before 1898 that was not designed to discharge rim-fire or centre-fire ammunition and that has not been redesigned to discharge such ammunition, or

(b) any firearm that is prescribed to be an antique firearm.

 

So far, any matchlock, wheel-lock, flintlock or cap-and-ball firearm made before 1898, includinghandguns, is an “antique firearm” under CC s.  84(1)(a).  But what about CC s.  84(1)(b)? Are there any “prescribed” antique firearms?

Yes, there are.  They are listed in Regulations Prescribing Antique Firearms, SOR 98-464, 16 Sep 98, proclaimed in the Canada Gazette Part II, Vol 132 No 20, dated 30 Sep 98, at page 2725, which defines them, in part, as:

 

1.  A reproduction of a flintlock, wheel-lock, or matchlock firearm, other than a handgun, manufacturedafter 1897.

Note: Post-1897 cap-and-ball long arms, and handguns of any kind, are not “antique firearms” under this paragraph.

 

2.  A rifle manufactured before 1898 that is capable of discharging only rim-fire cartridges, other than22 Calibre Short, Long, or Long Rifle.

Note: This includes a repeating rim-fire rifle like the lever-action .44 rimfire Henry or Swiss Vetterli in .41 Swiss rim-fire as an “antique firearm.”

 

3.  A rifle manufactured before 1898 that is capable of discharging centre-fire cartridges, whether with a smooth or rifled bore, having a bore diameter of 8.3 mm [.327″] or greater measured from land to land in the case of a rifled bore, with the exception of a repeating firearm fed by any type of cartridge magazine.

Note: This includes only single-shot large-bore rifles and unrifled “rifles.”  (It is probable that this odd wording is intended to include items like smoothbore versions of the Trapdoor Springfield in 45-70 or 50-70.  With this wording, the dividing line between a “rifle” and a “shotgun” is so blurred that judges will be required to draw the final line — with a Supreme Court of Canada decision being needed for finality.

 

4.  A shotgun manufactured before 1898 that is capable of discharging only rim-fire cartridges, other than 22 Calibre Short, Long or Long Rifle.

Note: This defines an old 9 mm rim-fire shotgun as an “antique firearm.”  That seems likely to cause problems, as few of the many 9mm rim-fire shotguns in Canada can be accurately dated.

 

5.  A shotgun manufactured before 1898 that is capable of discharging centre-fire cartridges, other than10, 12, 16, 20, 28, or 410 gauge cartridges.

Note: This is fairly useless, except to exempt guns for a few advanced collectors.  It may be helpful for a collector who owns several 8 gauge shotguns, but there are severe problems in dating old shotguns.

 

6.  A handgun manufactured before 1898 that is capable of discharging only rim-fire cartridges, other than 22 Calibre Short, Long or Long Rifle.

Note: This includes every .30, .32, .38, and .41 calibre rim-fire derringer and revolver as an “antique firearm.”

 

7.  A handgun manufactured before 1898 that is capable of discharging centre-fire cartridges, other than a handgun designed or adapted to discharge 32 Short Colt, 32 Long Colt, 32 Smith and Wesson, 32 Smith and Wesson Long, 32-20 Winchester, 38 Smith and Wesson, 38 Short Colt, 38 Long Colt, 38-40 Winchester, 44-40 Winchester, or 45 Colt cartridges.

Note: This includes any pre-1898 Colt Single Action or Double Action revolver in .41 calibre, plus any Smith and Wesson or other revolver in any .44 calibre other than .44-40 Winchester.  If a Colt revolver, manufactured in 1882 is re-barreled and re-cylindered to fire .44 Special cartridges is stillan “antique firearm” because .44 Special is not on the cartridge list.

 

Note: The term “manufactured before 1898” is vague.  For example, the Remington .41 rim-fire double-barreled derringer was manufactured continuously from 1866 to 1935.  The actual date of manufacture of a particular specimen cannot be determined, because no list of the serial numbers used in any particular year is available.

 

The key to the confusion at this point is that the CC s.  84(1) definition uses the words, “any firearm manufactured before 1898.”  That wording is ambiguous, and has been, historically, interpreted in two different ways by CFR/FRAS.

The question is whether Parliament intended that a firearm should qualify as an “antique firearm” on the basis of the actual age of that particular firearm, or on the basis of the antiquated design of the firearm.

It seems very probable that Parliament intended that the designation “antique firearm” should apply to an antiquated design rather than to the age of the particular firearm.  While the age of a particular firearm may be important to an antiquarian or a collector of historic relics, the firearms control legislation is concerned with public safety, not academic matters like absolute age.  A firearm manufactured at 11:59 PM on 31 Dec 1897 and another manufactured at 00:01 AM on 01 Jan 1898 are identical in the danger that they pose to public safety.  It therefore seems very unlikely that Parliament intended to sharply distinguish the way in which the firearms control system would treat two such identical firearms on the basis of age.

In some cases, a recognized authority states that all of the particular handguns actually assembled and in the warehouse ready to be shipped by a manufacturer before 1898 bore serial numbers below, say, “123456.”  In such a case, CFR/FRAS often treats all handguns with serial numbers below that serial number as “antique firearms.”  CFR/FRAS then treats firearms with serial numbers above that serial number as “restricted firearms” or “prohibited firearms” that are not “antique firearms.”

In simple language, when the CFR/FRAS personnel have that type of serial number information, the above pattern of behavior is frequently — but not always — the pattern of behavior adopted by CFR/FRAS officials.

In cases where the manufacturer no longer exists, or the manufacturer’s lists of serial numbers used before and after the year 1898 have been destroyed or are no longer available for any reason, the behavior of CFR/FRAS officials has been different.  In such a case, the fact that the firearm beganbeing manufactured before 1898 has frequently been considered as adequate evidence that everyhandgun of that pattern is an “antique firearm,” not subject to registration requirements.

In sum, the CFR/FRAS officials have sometimes treated handguns as if the legislation’s words, “any firearm manufactured before 1898” means “any firearm of a design manufactured before 1898″ and sometimes as if they means “any particular firearm that was itself manufactured before 1898.”

It is not possible that both interpretations are correct.  One is correct, and one is incorrect.  It is either the age of the design, or the age of the particular firearm.

Parliament’s intent may have been communicated by its choice of the word “manufactured” and by its rejection of the use of the words “assembled and ready to be shipped.”  Understanding Parliament’s intent requires understanding of other definitions pertinent to the situation.

Parliament’s intent is further clarified by the choice of wording in FA s.  12(7), another provision that deals with firearms by date of manufacture.

 

12.  (7) A particular individual is eligible to hold a licence authorizing the particular individual to possessa particular handgun…that was manufactured before 1946

That wording clarifies the intent, showing that it is the particular firearm that must have been manufactured before midnight of 31 Dec 45.  A particular firearm of a design manufactured before 31 Dec 45 — but which itself was manufactured in 1946 or later — would not be included.

Obviously, if Parliament had intended its provision “manufactured before 1898” to apply to the manufacture of each particular firearm, it could have used the same language.  It did not.

What is striking about this situation is that FA s.  12(7) and 84(1) “antique firearm” were written as parts of the same Bill for enactment by Parliament.  Therefore, the difference in wording is apparently significant, and should be taken into consideration when deciding Parliament’s intentregarding the “antique firearm” definition in CC s.  84(1).  It is strong evidence that Parliamentintended that “any firearm manufactured before 1898” means “any firearm of a designmanufactured before 1898″, not “any particular firearm that was itself manufactured before 1898.”

CC s.  2 defines “firearm” as “a barreled weapon…and includes and frame or receiver of such a barreled weapon.”

Therefore, clearly, once a “frame or receiver” has been manufactured, a “firearm” has been manufactured, under Canadian law.  That was not the understanding of a factory at the turn of the century when it was compiling production records.  In their view, a firearm had not been manufactured until it was assembled and completed in all respects.

A manufacturer may make a “frame or receiver,” and stamp it with a serial number immediately — or manufacture many receivers, and not stamp them with serial numbers until the date that an entire firearm is assembled using that “frame or receiver.”  It is therefore obvious that the date of manufacture of a particular firearm — as determined by current Canadian law — can at best be approximated, but not definitively known.

Clearly, accepting the word of some “authority” that a particular serial number marks a solid and definitive dividing line between firearms “manufactured” on or before 11:59 PM 31 Dec 1897 and firearms “manufactured” on or after 00:01 AM 01 Jan 1898 is unrealistic.  The “frame or receiver” might well have been manufactured well before the dividing moment, but did not receive its serial number until after the dividing moment.  It may have received its serial number before the dividing moment, but not have been recorded in the manufacturer’s record books as a firearm until after the dividing moment.  The truth is, in most cases, unknowable.

Many manufacturers did not stamp the serial number on the “frame or receiver.”  They stamped it on the barrel.  A barrel, in Canadian law, is an uncontrolled spare part, not a “firearm.”  In other cases they stamped the number on some other uncontrolled spare part.  Where that happened, the serial number is clearly useless for determining the date of manufacture of the “frame or receiver.”  There may well have been an innocent substitution of parts that altered the apparent serial number of the firearm, somewhere in the interval between 01 Jan 1898 and the present.

Many manufactures, particularly manufacturers of cheap “utility” firearms, did not stamp them with serial numbers at all.  In such cases, there is no possibility, at this late date, of determining theactual date of manufacture of a particular “frame or receiver”, or event the date that the complete firearm was first assembled.

Parliament clearly intended that its legislation should have one meaning.  It seems unlikely that Parliament intended to write legislation requiring its officials to know the unknowable.  That would have been rather silly.

It is therefore highly probable that Parliament intended that the legislation’s words, “any firearm manufactured before 1898” to mean “any firearm of a design manufactured before 1898″ and not“any particular firearm that was itself manufactured before 1898.”

It is also probable that Parliament did not intend to create the ridiculous situation that the latter interpretation would require.  It is not reasonable to believe that Parliament intended the “frame or receiver” of a single-shot rifle manufactured at 11:59 PM on 31 Dec 1897 is an “antique firearm” not requiring registration, while an identical rifle manufactured two minutes later is not an “antique firearm.”

Clearly, a Walker Colt cap-and-ball revolver manufactured in 1847 is an “antique firearm.”  The 1847 batch of Walker Colts was not manufactured by Colt.  Each specimen was manufactured in a factory not owned by Colt, marked “Colt,” and sold to Colt.  Colt then sold it to Colt’s customers.

It may well be that a Walker Colt manufactured in 1974, bearing the Colt factory markings and sold by Colt, is also an “antique firearm.”  Like the 1847 Walker Colt, the 1974 batch of Walker Colts was not manufactured by Colt.  Each specimen was manufactured in a factory not owned by Colt, marked “Colt,” and sold to Colt.  Colt then sold it to Colt’s customers.

The 1974 Walker Colts are identical to the 1847 Walker Colts, and their serial numbers begin where the 1847 Walker Colt series of serial numbers end.

That may well be sufficient to have the 1974 batch of 1847 Walker Colt revolvers ruled to be “antique firearms.”

If that is how a judge rules, and it may well be, then another 1847 Walker Colt — made in the same Italian factory but marked differently and sold in or from the United States by a different importer — may also be an “antique firearm” under the CC s.  84(1)(a) definition.

The dividing line between what is and what is not an “antique firearm” is undefined at present.  The only person who can give us an answer is a judge in a court of criminal law, and a final answer is only available at the Supreme Court of Canada level.  The law allows everyone to have an opinion — but it does not allow anyone but a judge to rule on what this sadly vague legislation actually means.

If the principles established by the Orders in Council of 01 Dec 98 that put so many firearms into the “prohibited firearm” and “restricted firearm” classes are followed, the “antique firearm” class is again expanded.  Those Orders in Council named one “firearm of the design commonly known as the…”  and then included under that designation “and any variant or modified version of it.”  Lists of “variants” accompanied some of the designated ‘parent’ firearms [Canada Gazette Part II, Vol 132, No 20, 2702 to 2711].

On those lists, firearms made in a different factory in a different country in a different calibre, but with a similar mechanism, were listed as “variants” of the “firearm of the design commonly known as the…”, and therefore also became, in law, a “firearm of the design commonly known as the…”

Firearms that had totally different mechanisms, and merely looked somewhat like the designated “firearm of the design commonly known as the…”  were listed as “variants” of the firearm designated by law.  They therefore also became, in law, “restricted firearms” or “prohibited firearms” by virtue of their relationship to the designated firearm.

If those broad-brush principles apply to the definition of “antique firearm,” then minor changes such as calibre or altered mechanism would not be enough to take a firearm based on a design that began to be manufactured before 01 Jan 1898 out of the “antique firearm” class.

There is another major change between the previous legislation and current legislation.  In the previous Act, CC s.  84(2) said:

  • 84.  (2) Notwithstanding the definition “firearm” in susection (1), for the purposes of the definitions “prohibited weapon” and “restricted weapon” in that subsection and for the purposes of section 93, subsections 97(1) and (3), and sections 102, 104, 105 and 116, the following weapons shall be deemed not to be firearms:

(a) an antique firearm unless

(i) but for this subsection, it would be a restricted weapon, and

(ii) the person in possession thereof intends to discharge it…  [emphasis added throughout].

The equivalent subsection in the current legislation says,

  • 84…  (3) For the purposes of sections 91 to 95, 99 to 101, 103 to 1007 and 117.03 of this Act and the provisions of the Firearms act, the following weapons are deemed not to be firearms:

(a) any antique firearm [emphasis added throughout]…

Therefore, under the previous legislation, any antique firearm became a “firearm” and a “restricted weapon” or a “prohibited weapon” (if it met the CC s.  84(1) physical characteristic list for such a designation) at the moment the possessor formed an intention to discharge it.

Under the current legislation, “any antique firearm” (including, apparently, a loaded one) is not a “firearm” for the following purposes:

  • 1.  Firearms Act: None of the provisions of the Firearms Act, including those requiring registration, licences, ATTs and/or ATCs, apply to any “antique firearm.”
  • 2.  CC s.  91 and 92: Possession of any “antique firearm” without a licence or registration certificate is legal.

3.  CC s.  93: Possession of any “antique firearm” at any location is legal.

  • 4.  CC s.  94: Being in a motor vehicle with any “antique firearm” is legal.
  • 5.  CC s.  95: Being in possession of a loaded “antique firearm” (which is also a “restricted firearm” or a “prohibited firearm”), or one with readily accessible ammunition is legal even if the person is not the holder of any licence, registration certificate, ATT, or ATC.
  • 6.  CC s.  99: Transferring or offering to transfer any “antique firearm” is legal.
  • 7.  CC s.  100: Dealing in any type of any “antique firearm” is legal.
  • 8.  CC s.  101: Transferring any “antique firearm” is legal if the transfer apparently violates the Firearms Act.
  • 9.  CC s.  103 and 104: Importing or exporting any “antique firearm” is legal.
  • 10.  CC s.  105: Not reporting the loss or finding of any “antique firearm” is legal.
  • 11.  CC s.  106 and 107: Not reporting the destruction of any “antique firearm” is legal, and knowingly making a false report of that type to a firearms official or the police is legal.
  • 12.  CC s.  117.03: A peace officer who finds a person in possession of any “antique firearm” is not authorized to demand that the person present a licence, registration certificate, ATT, and/or ATC.

On the other hand, an “antique firearm” is still a “firearm” for the purposes of all sections of the Criminal Code other than those listed above.  For example, an “antique firearm” is a “firearm” for the purposes of CC s.  85 (using while committing an offence), 86 (storage and transportation rules — but the rules for “antique firearms” are very mild), 87 (points a firearm at another person), 88 (possession for a purpose dangerous to the public peace), 89 (possession at or on the way to a public meeting, and 90 (carrying a weapon [see CC s.  2 “weapon” and “firearm”] concealed).

Criminal Code section [CC s.] 84(1) “antique firearm” defines “any firearm manufactured before 1898 that was not designed to discharge rimfire or centre-fire ammunition and that has not been redesigned to discharge such ammunition” as an “antique firearm” [emphasis added].

The C-68 Firearms Act section 84(1) definition of “antique firearm” includes “any firearm that isprescribed by Order in Council [OIC]) to be an antique firearm” [emphasis added].

An OIC has been issued converting ALL flintlock and wheellock and matchlock long arms manufactured after 1898 to “antique firearm” status — but not percussion guns or any handguns.

You may register any firearm by registering the “frame or receiver.”  That part is the “firearm,” in law [CC s.  2] –the rest of it is uncontrolled spare parts, which may or may not be attached to the “firearm” at any given moment, and which can be bought, sold and traded without an FAC or C-68 licence.

With muzzle-loading firearms, one of the severe problems is that there is no “frame or receiver” in many such firearms.  The CFC issued a rather witless answer, which the NFA is exploiting, saying that the breech plug in such a firearm is the “frame or receiver” because the barrel screws onto it.  Therefore, the breech plug IS the “firearm” — and is the ONLY part of your muzzle-loader that requires registration.  The RCMP replied to their copy of that letter by saying that the barrel is the “frame or receiver.  Both replies are nonsense.

Registering only the breech plug is very flexible.  If that plug is registered, you can attach uncontrolled spare parts to make it into a handgun, shotgun or rifle — a matchlock, wheellock, flintlock or percussion firearm.  As long as the conversion does not change the class (non-restricted, restricted, prohibited firearm), all the variations are “registered.”

The term, “frame or receiver only” is used by the registration people.  It should be noted that a “firearm” is not a “frame or receiver only” if it has even one other part — say, a screw — attached to the naked “frame or receiver.”  With an extra part, or extra parts, it is a partial firearm, not a “frame or receiver only.”

The March 1998 regulations include at “Firearms Registration Certificates Regulations” 4(b) a requirement to “notify the Registrar” of changes to any “frame or receiver only” when you attach extra uncontrolled spare parts — but that appears to violate the legislation, in that the legislation does not enable the making of any such regulation, and the legislation does not authorize any demand for any notification for such a reason.  Once a firearm is registered, according to the legislation, it is registered — unless they go through the long and complex process of revoking the registration.

Even if 4(b) was valid, proof of violation would require them to prove that the uncontrolled spare parts had been continuously attached to the “frame or receiver” for “30 days.”  That is because 4(b) says you must tell them within 30 days, and, every time you strip the firearm apart to clean it, a new 30-day period begins.

Additionally, section 4(b) is an attempt by the government to order the Registrar to attach a particular condition to every such registration certificate — and that is illegal.  It is legislating — creating new law — and only Parliament can do that.

Obviously, a registered breech plug has, on the registration certificate, no Make, Model, Manufacturer, Type, Action, Calibre, Barrel length or Serial number.  It is probably a Single-shot firearm, although some muzzle-loaders with one barrel were capable of firing superimposed loads, so even that is not certain.  It must be “identified” by attaching a “sticky” supplied by the Registrar.  I do hope that everyone realizes that the breech plug should be degreased before attaching the “sticky” — because, if it falls off, the Registrar has to issue a free replacement for it.  Perhaps over and over again, if a person is too dense to realize why they will not stick.

The NFA is most interested in learning about every cleaning, lubricating and/or preservative substance that causes a “sticky” to fall off, or that washes off the printing on it, so that we can warn people not to use it.  After all, if people do use such a substance, the cost could go very high as they have to replace all those “stickies” — each one a custom-made item with a unique number.

You should be warned that, according to the CFC, the breech plug of a no-“frame or receiver” firearmis the “frame or receiver” and therefore is the “firearm.”  Therefore, any Serial number that appears on any other part of the firearm should never be used to register it.  Any attempt to do so may result in criminal charges for violation of Firearms Act section 106 (making a statement, orally or in writing, that is false or misleading) and incur the “imprisonment for a term not exceeding 5 years” penalty.  The rule is in FA s.  106, and the penalty for violating it is laid out in FA s.  109.

You should be warned that FA s.  106 contains a deadly trap.  By tricky wording, s.  106 makes anyerror on an Application to Register — even a perfectly honest error — a criminal offence.  The NFA therefore points out that then only thing that it is safe to enter in any “identifying” box (Make, Model, Calibre/Gauge) on an Application is — “UNKNOWN” or “UNK.”  You cannot be prosecuted for NOT knowing, with perfect certainty, exactly what should go into the box — but you can be prosecuted for anything that you put down if a firearms control bureaucrat does not agree with you.

Bill C-68 is very defective legislation, and it is our duty to test it in the fires of work-to-rule.  They wrote this defective legislation, and we must enforce — to the letter — the requirements that firearms control bureaaucrats have to comply with.  Watch for many NFA information in this area.