MISSISSIPPI LEGISLATURE

2013 Regular Session

To: Judiciary, Division A

By: Senator(s) Jones

Senate Bill 2765

AN ACT TO RESTRICT THE POSSESSION OR USE OF MACHINE GUNS IN THE PERPETRATION OR ATTEMPTED PERPETRATION OF A CRIME OF VIOLENCE; TO PROHIBIT TRANSFER OF A MACHINE GUN TO A PERSON UNDER 16; TO DEFINE ASSAULT WEAPON; TO PROHIBIT SALE OR TRANSFER OF ASSAULT WEAPONS; TO PROHIBIT POSSESSION OF ASSAULT WEAPONS; TO ENACT EXCEPTIONS; TO PROVIDE FOR A CERTIFICATE OF POSSESSION OF AN ASSAULT WEAPON AND A CERTIFICATE OF TRANSFER OF AN ASSAULT WEAPON TO A GUN DEALER; TO AUTHORIZE RELINQUISHMENT OF AN ASSAULT WEAPON TO A LAW ENFORCEMENT AGENCY; TO PROVIDE FOR LEGAL TRANSPORTATION OF AN ASSAULT WEAPON; TO REQUIRE THE REPORT OF ANY LOSS OR THEFT OF AN ASSAULT WEAPON OR OTHER FIREARM AND PROVIDE A PENALTY FOR FAILURE TO REPORT; TO ALLOW THE TEMPORARY TRANSFER OR POSSESSION OF AN ASSAULT WEAPON TO AN OUT-OF-STATE EVENT; TO SPECIFY THE CIRCUMSTANCES IN WHICH MANUFACTURE OR TRANSPORTATION OF ASSAULT WEAPONS IS NOT PROHIBITED; TO CREATE THE OFFENSE OF COMMISSION OF A FELONY WITH AN ASSAULT WEAPON AND TO PROVIDE AN 8-YEAR NONSUSPENDABLE SENTENCE THEREFOR; TO CREATE THE OFFENSE OF COMMISSION OF A FELONY WITH A FIREARM AND TO PROVIDE A 5-YEAR NONSUSPENDABLE SENTENCE THEREFOR; TO DEFINE ARMOR-PIERCING AND INCENDIARY AMMUNITION AND PROHIBIT SALE OR TRANSFER THEREOF; TO CREATE EXCEPTIONS FOR THE TRANSFER, REGISTRATION AND POSSESSION OF CERTAIN ASSAULT WEAPONS; TO CREATE AN AFFIRMATIVE DEFENSE TO PROSECUTIONS UNDER THE ACT; TO CREATE THE OFFENSE OF FIREARMS TRAFFICKING; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. (1) As used in this section:

(a) "Machine gun" means a weapon of any description, loaded or unloaded, that shoots, is designed to shoot or can be readily restored to shoot automatically more than one projectile, without manual reloading, by a single function of the trigger, and shall also include any part or combination of parts designed for use in converting a weapon into a machine gun and any combination of parts from which a machine gun can be assembled if the parts are in the possession of or under the control of a person.

(b) "Crime of violence" means any of the following named crimes or an attempt to commit any of the following named crimes: murder, manslaughter, kidnapping, rape, sexual battery, assault, robbery, armed robbery, burglary and larceny.

(c) "Projectile" means any size bullet that when affixed to any cartridge case may be propelled through the bore of a machine gun.

(2) Any person who possesses or uses a machine gun in the perpetration or attempted perpetration of a crime of violence shall be imprisoned not less than ten (10) years nor more than twenty (20) years.

(3) Any person who (a) possesses or uses a machine gun for an offensive or aggressive purpose, or (b) notwithstanding the provisions of subsection (8) of this section, transfers, sells or gives a machine gun to a person under sixteen (16) years of age, including the temporary transfer of a machine gun to the person for use in target shooting or on a firing or shooting range or for any other purpose, shall be fined not more than One Thousand Dollars ($1,000.00), and imprisoned not less than five (5) years nor more than ten (10) years.

(4) The possession or use of a machine gun shall be presumed to be for an offensive or aggressive purpose:

(a) When the machine gun is on premises not owned or rented for bona fide permanent residence or business occupancy by the person in whose possession the machine gun was found; or

(b) When in the possession of, or used by, an unnaturalized foreign-born person, or a person who has been convicted of a crime of violence in any state or federal court of record of the United States, its territories or insular possessions; or

(c) When the machine gun is of the kind described in subsection (7) of this section and has not been registered as therein required; or

(d) When empty or loaded projectiles of any caliber which have been or are susceptible of use in the machine gun are found in the immediate vicinity thereof.

(5) The presence of a machine gun in any room, boat or vehicle shall be presumptive evidence of the possession or use of the machine gun by each person occupying such room, boat or vehicle.

(6) Each manufacturer shall keep a register of all machine guns manufactured or handled by the manufacturer. The register shall show the model and serial number, dates of manufacture, sale, loan, gift, delivery or receipt of each machine gun, the name, address and occupation of the person to whom the machine gun was sold, loaned, given or delivered, or from whom it was received, and the purpose for which it was acquired by the person to whom the machine gun was sold, loaned, given or delivered. Upon demand, any manufacturer shall permit any marshal or police officer to inspect the manufacturer's entire stock of machine guns, and parts and supplies therefor, and shall produce the required register for inspection. Any person who violates any provision of this subsection shall be fined not more than Two Thousand Dollars ($2,000.00).

(7) Each machine gun in this state adapted to use projectiles of any caliber shall be registered with the Commissioner of Public Safety within twenty-four (24) hours after its acquisition and, thereafter, annually. Forms for registration shall be prepared by the commissioner and furnished upon application. To comply with this subsection, the application as filed shall show the model and serial number of the gun, the name, address and occupation of the person in possession, and from whom and the purpose for which the gun was acquired. The registration data shall not be subject to inspection by the public and is not a public record. Any person who fails to register any gun as required hereby shall be presumed to possess the gun for an offensive or aggressive purpose. The provisions of this subsection shall not apply to any machine gun which has been registered under the provisions of subsection (6) and which is still in the actual possession of the manufacturer.

(8) No provision of this section shall apply to:

(a) The manufacture of machine guns for sale or transfer to the United States government, to any state, territory or possession of the United States or to any political subdivision thereof or to the District of Columbia;

(b) The possession of a machine gun rendered inoperable by welding of all critical functioning parts and possessed as a curiosity, ornament or keepsake; or

(c) A machine gun acquired, transferred or possessed in accordance with the National Firearms Act, as amended, provided such machine gun shall be subject to the provisions of subsection (7) of this section.

SECTION 2. (1) "Assault weapon" does not include any firearm modified to render it permanently inoperable; "Assault weapon" means:

(a) Any semiautomatic, centerfire or rimfire rifle with the capacity to accept more than ten (10) rounds or any selective-fire firearm capable of fully automatic, semiautomatic or burst fire at the option of the user or any of the following specified semiautomatic firearms: Algimec Agmi; Armalite AR-180; Australian Automatic Arms SAP Pistol; Auto-Ordnance Thompson type; Avtomat Kalashnikov AK-47 type; Barrett Light-Fifty model 82A1; Beretta AR-70; Bushmaster Auto Rifle and Auto Pistol; Calico models M-900, M-950 and 100-P; Chartered Industries of Singapore SR-88; Colt AR-15 and Sporter; Daewoo K-1, K-2, Max-1 and Max-2; Encom MK-IV, MP-9 and MP-45; Fabrique Nationale FN/FAL, FN/LAR, or FN/FNC; FAMAS MAS 223; Feather AT-9 and Mini-AT; Federal XC-900 and XC-450; Franchi SPAS-12 and LAW-12; Galil AR and ARM; Goncz High-Tech Carbine and High-Tech Long Pistol; Heckler & Koch HK-91, HK-93, HK-94 and SP-89; Holmes MP-83; MAC-10, MAC-11 and MAC-11 Carbine type; Intratec TEC-9 and Scorpion; Iver Johnson Enforcer model 3000; Ruger Mini-14/5F folding stock model only; Scarab Skorpion; SIG 57 AMT and 500 series; Spectre Auto Carbine and Auto Pistol; Springfield Armory BM59, SAR-48 and G-3; Sterling MK-6 and MK-7; Steyr AUG; Street Sweeper and Striker 12 revolving cylinder shotguns; USAS-12; UZI Carbine, Mini-Carbine and Pistol; Weaver Arms Nighthawk; Wilkinson "Linda" Pistol;

(b) A part or combination of parts designed or intended to convert a firearm into an assault weapon or any combination of parts from which an assault weapon may be rapidly assembled if those parts are in the possession or under the control of the same person;

(i) A semiautomatic rifle that has an ability to accept a detachable magazine and has at least two of the following:

1. A folding or telescoping stock;

2. A pistol grip that protrudes conspicuously beneath the action of the weapon;

3. A bayonet mount;

4. A flash suppressor or threaded barrel designed to accommodate a flash suppressor; and

5. A grenade launcher; or

(ii) A semiautomatic pistol that has an ability to accept a detachable magazine and has at least two of the following:

1. An ammunition magazine that attaches to the pistol outside of the pistol grip;

2. A threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip or silencer;

3. A shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to hold the firearm with the nontrigger hand without being burned;

4. A manufactured weight of fifty ounces or more when the pistol is unloaded; and

5. A semiautomatic version of an automatic firearm; or

(iii). A semiautomatic shotgun that has at least two of the following:

1. A folding or telescoping stock;

2. A pistol grip that protrudes conspicuously beneath the action of the weapon;

3. A fixed magazine capacity in excess of five rounds; and

(iv) An ability to accept a detachable magazine; or

(d) A part or combination of parts designed or intended to convert a firearm into an assault weapon or any combination of parts from which an assault weapon may be rapidly assembled if those parts are in the possession or under the control of the same person.

(2) (a) Any person who, within this state, distributes, transports or imports into the state, keeps for sale, or offers or exposes for sale, or who gives any assault weapon shall be guilty of a felony and shall be fined not more than Ten Thousand Dollars ($10,000.00) and sentenced to a term of imprisonment of not less than one (1) nor more than ten (10) years, of which two (2) years may not be suspended or reduced.

(b) Any person who transfers, sells or gives any assault weapon to a person under eighteen years of age in violation of this section shall be sentenced to a term of imprisonment of six (6) years, which shall not be suspended or reduced and shall be in addition and consecutive to the term of imprisonment imposed under paragraph (a) of this subsection.

(i) The sale of assault weapons to the Department of Public Safety, police departments, the Department of Corrections or the military or naval forces of this state or of the United States for use in the discharge of their official duties;

(ii) A person who is the executor or administrator of an estate that includes an assault weapon for which a certificate of possession has been issued;

(iii) The transfer by bequest or intestate succession of an assault weapon for which a certificate of possession has been issued.

(3) (a) Except as provided in subsection (5) of this section, any person who possesses any assault weapon shall be guilty of a felony and shall be fined not more than Five Thousand Dollars ($5,000.00) and sentenced to a term of imprisonment of not less than one (1) nor more than five (5) years, of which one (1) year may not be suspended or reduced; except that a first-time violation of this subsection shall be a misdemeanor if: (i) the person presents proof that he lawfully possessed the assault weapon before October 1, 2013, and (ii) the person has otherwise possessed the firearm in compliance with subsection (4) of this section.

(b) The provisions of paragraph (a) of this subsection do not apply:

(i) To the possession of assault weapons by members or employees of the Department of Public Safety, police departments, the Department of Corrections or the military or naval forces of this state or of the United States for use in the discharge of their official duties or use of assault weapons by sworn members of these agencies when on duty and the use is within the scope of their duties.

(ii) To a person who is the executor or administrator of an estate that includes an assault weapon for which a certificate of possession has been issued.

(4) (a) Any person who lawfully possesses an assault weapon before October 1, 2013, shall apply by October 1, 2013, or, if a member of the military or naval forces of this state or of the United States and is unable to apply by October 1, 2013, because he or she is or was on official duty outside of this state, shall apply within ninety (90) days of returning to the state, to the Department of Public Safety for a certificate of possession with respect to the assault weapon. The certificate shall contain a description of the firearm that identifies it uniquely, including all identification marks, the full name, address, date of birth and thumbprint of the owner, and any other information as the department may deem appropriate. The department shall adopt regulations not later than September 1, 2013, to establish procedures with respect to the application for and issuance of certificates of possession pursuant to this section. The records as to the persons issued a certificate of possession shall be confidential, are not a public record, and shall not be disclosed, except such records may be disclosed to law enforcement agencies.

(b) No assault weapon may be sold or transferred to any person within this state other than to a licensed gun dealer or by inheritance. Any person who obtains title to an assault weapon for which a certificate of possession has been issued under this section shall, within ninety (90) days of obtaining title, apply to the Department of Public Safety for a certificate of possession, render the weapon permanently inoperable, sell the weapon to a licensed gun dealer, or remove the weapon from the state. Any person who moves into the state in lawful possession of an assault weapon, shall, within ninety (90) days, either render the weapon permanently inoperable, sell the weapon to a licensed gun dealer or remove the weapon from this state, except that any person who is a member of the military or naval forces of this state or of the United States who is in lawful possession of an assault weapon and has been transferred into the state may, within ninety (90) days of arriving in the state, apply to the Department of Public Safety for a certificate of possession with respect to the assault weapon.

(c) If an owner of an assault weapon sells or transfers the weapon to a licensed gun dealer, he shall, at the time of delivery of the weapon, execute a certificate of transfer and cause the certificate to be mailed or delivered to the Commissioner of Public Safety. The certificate shall contain: (i) the date of sale or transfer; (ii) the name and address of the seller or transferor and the licensed gun dealer, their social security numbers or motor vehicle operator license numbers, if applicable; (iii) the licensed gun dealer's federal firearms license number; (iv) a description of the weapon, including the caliber of the weapon and its make, model and serial number; and (v) any other information the commissioner prescribes. The licensed gun dealer shall present his motor vehicle operator's license or social security card and federal firearms license to the seller or transferor for inspection at the time of purchase or transfer. The Commissioner of Public Safety shall maintain a file of all certificates of transfer at his central office which is not a public record.

(d) A person who has been issued a certificate of possession of an assault weapon under this section may possess it only under the following conditions:

(i) At that person's residence, place of business or other property owned by that person, or on property owned by another with the owner's express permission;

(ii) While on the premises of a target range of a public or private club or organization organized for the purpose of practicing shooting at targets;

(iii) While on a target range that holds a regulatory or business license for the purpose of practicing shooting at that target range;

(iv) While on the premises of a licensed shooting club;

(v) While attending any exhibition, display or educational project that is about firearms and which is sponsored by, conducted under the auspices of, or approved by, a law enforcement agency or a nationally or state recognized entity that fosters proficiency in, or promotes education about, firearms; or

(vi) While transporting the assault weapon between any of the places mentioned in this subsection, or to any licensed gun dealer for servicing or repair pursuant to subsection (6) of this section if the assault weapon is transported as required by subsection (6).

(5) Any individual may arrange in advance to relinquish an assault weapon to a police department or the Department of Public Safety. The assault weapon shall be transported in accordance with the provisions of subsection (6) of this section.

(6) (a) (i) While transporting an assault weapon between any of the places listed in subsection (4) of this section, no person shall carry a loaded assault weapon concealed from public view or knowingly have in any motor vehicle owned, operated or occupied by him: 1. a loaded assault weapon, or 2. an unloaded assault weapon unless the weapon is kept in the trunk of the vehicle or in a case or other container which is inaccessible to the operator of or any passenger in the vehicle. Any person who violates the provisions of this subsection shall be fined not more than Five Hundred Dollars ($500.00) or imprisoned not more than three (3) years, or both.

(ii) Any licensed gun dealer who lawfully possesses an assault weapon pursuant to subsection (4) of this section may transport the assault weapon between dealers or out of the state, display it at any gun show licensed by a state or local governmental entity or sell it to a resident outside the state. Any transporting of the assault weapon allowed by this subsection must be done as required by this subsection.

(iii) 1. Any licensed gun dealer may take possession of any assault weapon for the purposes of servicing or repair from any person to whom has been issued a certificate of possession for such weapon.

(b) Any licensed gun dealer may transfer possession of any assault weapon received pursuant to this subsection to a gunsmith for purposes of accomplishing service or repair of the same. Transfers are permissible only to the following persons:

(i) A gunsmith who is in the dealer's employ;

(ii) A gunsmith with whom the dealer has contracted for gunsmithing services, provided the gunsmith receiving the assault weapon holds a dealer's license issued pursuant to Title 18, Chapter 44, Section 921 et seq, U.S.C. and the regulations issued pursuant thereto.

(7) (a) Any person who lawfully possesses an assault weapon or a firearm that is lost by or stolen from the person shall report the loss or theft to the law enforcement agency in which the loss or theft occurred within seventy-two (72) hours after the person discovered or should have discovered the loss or theft. The law enforcement agency shall forward a copy of the report to the Commissioner of Public Safety. The provisions of this subsection shall not apply to the loss or theft of an antique firearm.

(b) Any person who fails to make a report required by this subsection within the prescribed time period commits an infraction and shall be fined not more than Ninety Dollars ($90.00) for a first offense and, upon a second offense, shall be guilty of a felony and shall be fined not more than Five Thousand Dollars ($5,000.00) and imprisoned for not less than one (1) nor more than five (5) years, and for any third or subsequent offense, shall be guilty of a felony and fined not more than Ten Thousand Dollars ($10,000.00) and imprisoned not less than one (1) nor more than ten (10) years. A first offense of this section shall not deprive a person of the right to obtain a firearms concealed carry permit under Section 45-9-101.

(8) This act does not apply to the temporary transfer or possession of an assault weapon for which a certificate of possession has been issued for purposes of transporting the weapon to and from any shooting competition or exhibition, display or educational project which is about firearms and which is sponsored by, conducted under the auspices of, or approved by a law enforcement agency or a nationally or state recognized entity that fosters proficiency in, or promotes education about, firearms, which competition, exhibition, display or educational project is held outside this state.

(9) This or any other statute shall not be construed to prohibit any person, firm or corporation engaged in the business of manufacturing assault weapons in this state from manufacturing or transporting assault weapons in this state for sale within this state or for sale outside this state.

(10) Any person who commits any felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses an assault weapon shall be imprisoned for a term of eight (8) years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.

(11) Any person who commits any felony and in the commission of the felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm other than an assault weapon shall be imprisoned for a term of five (5) years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.

(12) For the purposes of this subsection:

(a) (i) "Armor piercing .50 caliber bullet" means any .50 caliber bullet that is 1. designed for the purpose of, 2. held out by the manufacturer or distributor as, or 3. generally recognized as having a specialized capability to penetrate armor or bulletproof glass, including, but not limited to, such bullets commonly designated as "M2 Armor-Piercing" or "AP", "M8 Armor-Piercing Incendiary" or "API", "M20 Armor-Piercing Incendiary Tracer" or "APIT", "M903 Caliber .50 Saboted Light Armor Penetrator" or "SLAP", or "M962 Saboted Light Armor Penetrator Tracer" or "SLAPT".

(ii) "Incendiary .50 caliber bullet" means any .50 caliber bullet that is 1. designed for the purpose of, 2. held out by the manufacturer or distributor as, or 3. generally recognized as having a specialized capability to ignite upon impact, including, but not limited to, such bullets commonly designated as "M1 Incendiary", "M23 Incendiary", "M8 Armor-Piercing Incendiary" or "API", or "M20 Armor-Piercing Incendiary Tracer" or "APIT".

(b) Any person who knowingly distributes, transports or imports into the state, keeps for sale or offers or exposes for sale or gives to any person any ammunition that is an armor piercing .50 caliber bullet or an incendiary .50 caliber bullet shall be guilty:

(i) For a first offense, of a misdemeanor; and

(ii) For a second or subsequent offense, of a felony and shall be punished by a fine not to exceed Five Thousand Dollars ($5,000.00), and imprisoned for not less than one (1) nor more than Five (5) years.

(i) The sale of such ammunition to the Department of Public Safety, police departments, the Department of Corrections or the military or naval forces of this state or of the United States for use in the discharge of their official duties;

(ii) A person who is the executor or administrator of an estate that includes such ammunition; or

(iii) The transfer by inheritance of such ammunition.

(d) If the court finds that a violation of this section is not of a serious nature and that the person charged with such violation (i) will probably not offend in the future, (ii) has not previously been convicted of a violation of this section, and (iii) has not previously had a prosecution under this section suspended pursuant to this subsection, it may order nonadjudication of the offense.

(13) This section shall not be construed to limit the transfer or require the registration of an assault weapon that was legally manufactured before September 13, 1994.

(14) (a) For the purposes of this subsection, "specified assault weapon" means any of the following firearms: Auto-Ordnance Thompson type, Avtomat Kalashnikov AK-47 type, or MAC-10, MAC-11 and MAC-11 Carbine type.

(b) The provisions of this section shall not apply to any person who (i) in good faith purchased or otherwise obtained title to a specified assault weapon in compliance with any state and federal laws concerning the purchase or transfer of firearms, (ii) is not otherwise disqualified or prohibited from possessing such specified assault weapon, and (iii) has notified the Department of Public Safety in accordance with subsection (c) of this section that he or she possesses such specified assault weapon.

(c) A person complies with the notice requirement of paragraph (b) of this subsection if the person provides the Department of Public Safety with: (i) A copy of the proof of purchase for such specified assault weapon, and (ii) one (1) of the following: 1. A copy of the appropriate state form with respect to such specified assault weapon; 2. a copy of federal ATF Form 4473 with respect to such specified assault weapon; or 3. a sworn affidavit from such person that such specified assault weapon was purchased in compliance with any state and federal laws concerning the purchase or transfer of firearms; except that, if such person does not have a copy of the proof of purchase for such specified assault weapon, such person may satisfy this requirement by providing such information as the department may require on a form prescribed by the department together with a sworn affidavit from such person that such specified assault weapon was purchased in compliance with any state and federal laws concerning the purchase or transfer of firearms.

(d) Any person who is a member of the military or naval forces of this state or of the United States and is unable to meet the notice requirements of this subsection by October 1, 2013, because such person is or was on official duty outside this state, may file such notice within ninety (90) days of returning to the state.

(e) As proof that a person has complied with the notice requirement of this subsection and that such notice has been received by the Department of Public Safety, the department shall issue a certificate of possession for such specified assault weapon. Such certificate shall contain a description of the firearm that identifies it uniquely, including all identification marks, and the full name, address and date of birth of the owner.

(15) (a) In any prosecution for a violation of this section based on the possession by the defendant of a specified assault weapon, it shall be an affirmative defense that the defendant (i) in good faith purchased or otherwise obtained title to such specified assault weapon in compliance with any state and federal laws concerning the purchase or transfer of firearms; (ii) is not otherwise disqualified or prohibited from possessing such specified assault weapon; and (iii) has possessed such specified assault weapon in compliance with this section.

(b) In any such prosecution, if such defendant proves such affirmative defense by a preponderance of the evidence, the specified assault weapon shall be returned to such defendant upon such defendant notifying the Department of Public Safety and obtaining a certificate of possession.

(16) (a) A person is guilty of firearms trafficking if such person, knowingly and intentionally, directly or indirectly, causes one or more firearms that such person owns, is in possession of or is in control of to come into the possession of or control of another person whom such person knows or has reason to believe is prohibited from owning or possessing any firearm under state or federal law.

(b) Any person who violates any provision of this subsection (15) shall be guilty of a felony and be punished as follows:

(i) If such person, sells, delivers or otherwise transfers five (5) or fewer firearms, by a fine not to exceed Ten Thousand Dollars ($10,000.00) and imprisonment of not less than one (1) year nor more than ten (10) years; or

(ii) If such person sells, delivers or otherwise transfers more than five (5) firearms, by a fine not to exceed Fifteen Thousand Dollars ($15,000.00) and imprisonment of not less than one (1) year nor more than twenty (20) years,

SECTION 3. This act shall take effect and be in force from and after October 1, 2013, and the Commissioner of Public Safety is directed to immediately upon passage of this act to begin the process of promulgating all necessary regulations for the enforcement of this act.