What To Do If The Police Come To Confiscate Your Militia Weapons
By Howard J. Fezell, Esq.
( Also check out the webpage for the ACLU and download its pocket-sized Bustcard. If those bleeding-hearts at ACLU are good for anything it's educating you on how to handle yourself with the cops. Go to http://www.SecondAmendment.net/ for other essays on your right to keep and bear arms.
What To Do If The Police Come To Confiscate Your Militia Weapons was first published in the June, 1990 issue of DOWNRANGE, the official publication of the Maryland State Rifle & Pistol Association for which I served as Legislative Counsel. The supplement following my essay offers some practical suggestions that occurred to me since it was first published. )
WHAT TO DO IF THE POLICE COME TO CONFISCATE YOUR MILITIA WEAPONS.
As California and New Jersey have enacted bans on the sale and unlicensed possession of militia-style semi-automatic rifles, every Marylander who professes loyalty to the Constitution should consider what
action he or she will take in the event that Congress, or our own General Assembly were to follow suit. The points addressed in this article are premised on three assumptions.
1. Either Congress, or our General Assembly has enacted legislation prohibiting or severely restricting the possession of weapons protected by the Second Amendment (e.g., military pattern semi-automatic rifles).
2. The reader has already decided to uphold the Constitution and not turn over his or her "prohibited" firearms under any circumstances, nor to register such weapons in order to facilitate their future confiscation. The reader has also failed to respond to government directives to dispose of or surrender such firearms.
3. The reader has secured all "prohibited" firearms away from his or her principal residence so as to prevent their unconstitutional seizure by the authorities.
What do you do when the police show up on your doorstep demanding the surrender of your militia weapons? In responding, bear in mind that you have two important rights guaranteed by the Fourth and Fifth Amendments to the United States Constitution.
The Fourth Amendment protects you against unreasonable searches and seizures. If the police want to search your house without your consent, they need a warrant. Warrants may only be issued upon a showing of probable cause, supported by an affidavit. The facts contained in the affidavit must do more than support a mere suspicion. The test is whether the information in the affidavit would justify a person of prudence and caution in believing that an offense is being committed, e.g. that "prohibited" weapons can be found on your premises. The requirement of probable cause for the issuance of warrants is one of your most precious constitutional protections. NEVER GIVE THE AUTHORITIES YOUR CONSENT TO SEARCH YOUR HOUSE, YOUR CAR, YOUR PLACE OF BUSINESS, OR ANY OTHER PREMISES UNDER YOUR CONTROL. Consent dispenses with the necessity of probable cause. While lacking probable cause, if the police conduct a search with your consent and seize evidence for use against you in court, your lawyer will not be able to suppress it on the basis that the search was warrantless.
The Fifth Amendment protects you against giving evidence against yourself, i.e., your right to remain silent. Just as you cannot be compelled to testify against yourself in a criminal trial, neither can you be
compelled to answer a policeman's questions about that AR-15 you bought a couple of years ago and never surrendered. Don't be bashful about invoking this right. It's always better to remain silent and appear guilty than to open your mouth and prove it.
At the outset of any contact with the police, ask them if they have a warrant to search your premises, or a warrant for your arrest. Without one or the other, don't let them inside your front door. If they have neither, politely request that they leave and gently close the door. If you have an attorney, keep one of his cards in your wallet. Give it to the officer in charge and request that all inquiries be made through your counsel. Remember, the police wouldn't be at your doorstep if you were not the target of a criminal investigation. You have no obligation whatsoever to cooperate with people who intend to unlawfully confiscate your property and put you in jail. They can't arrest you for keeping your mouth shut and going about your business.
The police may still persist in trying to question you, or ask your consent to "take a look around". Again, if you have an attorney, give the officer in charge one of his or her cards and request that all inquiries be
made through your counsel. Above all, remember that you have the right to break off this conversation. Do so immediately.
In some instances where the police lack a search warrant, they will tell you that it's a simple matter for them to obtain one and they "just want to save everybody a lot of time". This is hogwash. Politely tell them to go get one, and close the door. If they suggest that it will "go a lot easier on you" should you give them your consent to search, tell them to call your lawyer, and close the door.
In the event the police do in fact have a warrant either to arrest you or to search your premises, do not offer any resistance. You will have other battles to fight (presumably with the weapons you have hidden) and you want to be alive and kicking when the time comes. You are a member of the militia and we don't want to lose you or your weapon. You also don't want to do anything to endanger your family or deprive them of a home. Don't be foolish and engage the authorities in a firefight that you have no chance of winning.
On the other hand, you are not obliged to do anything to make the officers' job easier, such as giving them the combination to your gun safe. You have the right to remain silent and should take advantage of it. That
may cause the authorities to forcibly open your safe, with resultant damage. But let them work at their task. After all, it's their search warrant. Politely request to see a copy of any warrants, and above all,
remain silent. Anything you say can be used against you in court. Tell the officers that you do not want to say anything or answer any questions -- and that you want to talk to an attorney immediately. If you already have a lawyer, request permission to telephone him or her. If you have been taken into custody, the police are obliged to cease and desist from interrogation once you have asserted your right to remain silent and requested the assistance of legal counsel.
Your spouse and children will be natural targets of interrogation for the authorities. Do they know where your firearms are hidden? Although Maryland law generally prohibits your spouse from testifying against you in a criminal trial, that will be of no help of he or she breaks down under questioning and the authorities know where to retrieve your guns. Never forget that your objective is to safeguard your weapons and ammunition for the defense of the Constitution against all enemies, foreign and domestic.
If you or a family members are subpoenaed to testify before a grand jury or other judicial or governmental body, get an attorney immediately. Legal counsel can be very helpful, either in trying to quash the subpoena or helping to invoke one's rights against self-incrimination.
Never, under any circumstances, should you lie to the authorities. Simply exercise your right to remain silent. Don't try to snow them with phony bills of sale that can easily be checked out and used to impeach your credibility in court should you decide to testify. Above all, don't file a false police report that your guns were lost or stolen. Making a false report to a police officer that results in an investigation being undertaken is a criminal offense in Maryland. Remember, you are not a criminal. Your ultimate goal is to defend the Constitution.
Likewise, don't fall for any of the authorities' lies. Police love to play "Mutt & Jeff" (also known as "Good Cop - Bad Cop"). One officer comes across as a real hardcase, telling you about all the jail time you're
looking at. After a few minutes of this, his partner takes you aside, offers you a cigarette, and in a friendly tone tells you that he "only wants to help you". He only wants to help you confess. Tell Mr. Nice Guy you want to talk with a lawyer. Another police tactic is to tell you that a friend of yours has confessed and given them a statement implicating you for all kinds of things. They're just trying to rattle your cage and make you blurt something out. Keep your mouth shut and let your attorney handle the police. If they really have such a statement, your counsel will be able to discover it. [Author's note: In 1990 it was still legal to smoke in public buildings.]
If the authorities have a warrant to search your home, they might imply (sometimes none too subtlely) that if you do not come across with that they're looking for they will tear the place apart. Don't give in. Just
keep your mouth shut. If you hand over your "prohibited" weapons, you've just given them all the evidence they need to put you in prison. Even if you fall for this scare tactic, the police may still trash your house. Although this is the rare exception, not the rule, such conduct is not unheard of.
In the event you are on the receiving end of a search warrant, do not be pressured into signing any inventories of property seized without first consulting with an attorney. There might be something on that list that is prohibited according to some obscure regulation that you've never heard of. Also be sure that you or some family member receive an itemized list of any property seized. Under Maryland law the police are obliged to sign one and leave it at the premises from which the property is taken. If it is subsequently determined that the authorities took anything that was not within the scope of their warrant, your attorney should motion the court for its prompt return.
Hopefully, you will never have to avail yourself of the advice set forth above. The best thing you can do to keep the Free State really free is to make a healthy contribution to the cause, show up to testify in Annapolis next Winter, and keep up the pressure on your Delegate and Senator.
Remember, the battle to defend our liberties has already begun - and you are one of the Constitution's foot soldiers.
Confiscation Probably Will Not Come Out Of The Blue
Efforts to confiscate military pattern semi-automatic weapons must have some legal basis, e.g., passage of a statute requiring their registration or simply making possession unlawful. Barring some catastrophe which results in the imposition of martial law, this is not going to occur overnight or without public debate. This is your window of opportunity to select a place away from your principal residence in which to
store your weapon, ammo, and spare parts and, if you have not already done so, to legally obtain spare parts, tools, and extra ammunition. Unfortunately, by this time these items may be much more expensive if they are available at any price.
What Kind Of Militia Weapon To Have
If, within the next 30 years, ordinary Americans are subjected to life under an oppressive regime, its conscripts will likely be carrying some variant of the M16 chambered in 5.56 mm (.223 Remington). If you have an AR-15 type rifle or carbine your weapon can chamber ammunition from government stockpiles and, if you happen to relieve a statist conscript of his (or her) rifle, you will already have some familiarity with that weapon. An AR-15 also will have the same visual appearance and a "sound signature" similar to that used by the statist conscripts, except that it will not have a full automatic or burst option. If you are somehow spotted while armed, the silhouette of your AR-15 will not reveal you as a member of the resistance. That of an AKS, SKS, M1, or M1 Carbine definitely would. The location of hostile forces can also be pinpointed through the sound of their weapons, making sound signature is something to consider. The next time you are at the range listen to the difference between an AR-15 and an AKS and you will know exactly what I am talking about.
Spare Parts & Gunsmithing Tools
If the day ever arrives when police officers clad like ninjas demand the surrender of people's militia weapons you had better be prepared to do your own gun smithing. Those of you who already have a militia weapon should determine what parts might possibly break or wear out over the next 30 years, and purchase some spares. Parts for the M1, M1 Carbine, AR-15, and AKS can be purchased at any good gun show without any forms being filled out or any background checks being conducted.. The only part of a firearm that is required to bear a serial number and which generates paperwork upon sale is a pistol's frame or the receiver of a rifle or shotgun. While you're buying spare parts, get the TM for your weapon and any special tools you may need to repair it. These can often be purchased from the same people who sold you the parts. There are also VHS tapes showing how to perform most repairs that will ever be required for most military pattern semi-automatic weapons. These usually cost about $20 to $30 and actually seeing the work perform can be of great assistance. The money you spend now will keep your militia weapons functioning should the time come when it is no longer safe to use the services of a gunsmith, or if they have been ordered "out of business." As noted above, don't wait until the last minute to acquire
these items. Pay for everything in cash so as not to create a paper trail back to you. Make sure no receipts bear your name. This also applies to any purchases of ammunition.
When kept dry and stored at room temperature modern fixed ammunition has a long shelf-life. One of the benefits of trading with the People's Republic of China is that they make pretty decent ammo which can be
had at a very reasonable price. It's not match quality, but unless your militia rifle is going to be a Remington 700 in .308 with a HS Precision Stock and Leupold Ultra optics the Chinese ammo will do just fine. If you have any qualms about buying something produced by slave labor, plenty of ammunition (both new mfg. and surplus) is available from Argentina, Israel, and Europe. Try to buy in case lots. It will save you a lot of money and you will have ammunition from the same production lot, which means that once your weapon is zeroed you will have more consistent accuracy. The best place to find case lots is at a gun show. A case of Chinese made 5.56 mm will contain approximately 1,600 rounds. I would recommend that you keep at least 2,000 rounds in reserve for that rainy day we all hope will never come. If, however, it becomes necessary for ordinary people to take up arms in defense of the Constitution you want to have extra ammo on hand for distribution to other members of the resistance who, unlike you, either didn't plan ahead or had their stockpile confiscated by statist conscripts.
Avoid Unnecessary Paperwork
Unlike cancelled checks or credit card receipts, cash does not create a paper trail that will be around forever and, ten years from now, alert the ninjas to the fact that you once bought an AR15 or another weapon that has since been prohibited.
Depending upon where you live, it may still be possible for you to legally purchase a firearm from another private person without having to fill out any forms that may someday bring the authorities to your door. Spend a few bucks and find out from an attorney if there are any laws in your state requiring that private transfers be accompanied by any background check or other paperwork. It's not against the law to ask for legal advice to keep from breaking the law. And if you are not asking for advice to further a criminal act, the attorney-client privilege applies. Pay for this advice in cash. WHENEVER IT IS LEGAL FOR YOU TO PURCHASE FIREARMS FOR CASH IN A PRIVATE SALE WITHOUT ANY PAPERWORK BEING RETAINED BY THE SELLER OR FILED WITH AUTHORITIES, TAKE ADVANTAGE OF THIS. It's worth paying a premium for a gun that can be lawfully acquired without generating records that may someday direct the authorities to your door.
If you take any legal, non-papered, firearm to a gunsmith arrange to deliver it when he opens and pick it up before he closes. This way, federal regulations will not require that it be logged into his books, as it would be if he kept in the shop overnight. Your state may have its own regulations that say otherwise, so be sure to determine this ahead of time. Pay for all work in cash and ask that no receipt with your name or address be created since the gunsmith's carbon copy might later be used to target your weapon for confiscation. This is especially important if you legally acquired your militia weapon in a private transfer or by inheritance and there is no record of you being its lawful owner.
If you list a firearm on a rider to your homeowner's policy, the insurance company has a record of it. Records like this can be subpoenaed by the gun police checking to see who owns what. Protecting your militia weapon against confiscation by the government is, in my opinion, more important than getting reimbursed for its loss if your house burns down.
"From My Cold Dead Fingers"
There is a big difference between resistance in defense of our Constitution and committing suicide. I advocate the former. Since my essay was first published more than 10 years ago, I have heard from several people who think it's unpatriotic not to offer physical resistance should the authorities try to seize their guns. One anonymous soul sent me a letter chiding me for being a "pussy". He even enclosed the classic bumper sticker declaring, "THEY CAN HAVE MY GUN WHEN THEY PRY IT FROM MY COLD DEAD
FINGERS". I hope my anonymous correspondent is reading this because, my friend, that is exactly where the guys in the ninja suits will retrieve your gun after they kill you. Want to slug it out with the police from your home? They will simply secure the perimeter and call for backup. Don't be surprised if, after a couple of minutes, an armored vehicle rumbles up the street and right onto your front lawn. Do yourself and your family a big favor and avoid any violent confrontations with the authorities.
Liberals Are Useful For Something
Ever mindful of how some gunnies feel about the American Civil Liberties Union (ACLU), I would nonetheless recommend readers to its web page at www.aclu.org. From the section on "criminal justice" you can print out a pocket-sized "Bust Card" full of advice on how to handle yourself during confrontations with the gendarmes. Granted, people at the ACLU are rabidly anti-gun. But they do know a thing or two about dealing with people who can arrest you. The Bust Card is very well done, so take advantage of it. Keep one in your wallet right next to the your attorney's business card. (And remember, be polite.)
"Loose Lips Sink Ships"
Do your neighbors, fishing buddies, and in-laws really need to know that you have a military pattern semi-automatic rifle, spare parts, gun-smithing tools, and thousands of rounds of ammunition? If the time comes when exercising your Constitutional rights is verboten would any of them rat you out because they are anti-gun, have a grudge against you, or if they get in trouble themselves? Play it safe. Only a person with a genuine need to know and who can be counted on to keep his (or her) mouth shut should be made aware of what firearms you have and where they are.
What Have You Done Lately To Defend Your Gun Rights?
Efforts to chip away at the Bill of Rights can be defeated if enough people get out of their chairs and get involved in the political process. In 1997, an anti-gun wish list (Initiative 676) was on the ballot in Washington State. Despite being well-funded and enjoying considerable media support, I-676 went down to defeat by a margin of 71% to 29% because thousands of gunnies got organized politically and fought back. The purpose of my article and this supplement is not to lecture people about civics. Since you have bothered to read this you are obviously literate, and capable of figuring out how you can pitch in to the cause. The time and money you contribute will be well worth it if we can stop our enemies politically and ordinary people never have to take up arms in defense of our Constitution.