This rather inauspicious Bill has finally made its way through initial publication and its presentation in the Dail for the Second Stage Debate, and is currently awaiting its appearance in the Committee Stage (currently scheduled for June 18). Debate on the Bill has been heated, both in the Dail and outside it; and many errors and omissions have been noted. Perhaps now is the time for an interim summary post.

First of all, the actual references:

The Criminal Justice (Misc.Provisions) Bill 2009 and its Explanatory Memorandum.

The Second Stage Debate in the Dail, parts One, Two, Three and Four.

Now, a more detailed look.

The aspects of the Bill which concern the target shooting community begin with Section 23:

23.—Section 1 of the Principal Act is amended— (a) in the definition of “firearm” in subsection (1) (as substituted by section 26 of the Act of 2006) by the insertion in paragraph (f) of “or paragraph (h)” after “foregoing paragraphs”, and (b) by the addition of the following definitions after the definition of “muzzle energy”: “ ‘prohibited ammunition’ means ammunition that is declared by order under section 2C of this Act to be prohibited ammunition; ‘prohibited firearm’ means a firearm that is declared by order under section 2C of this Act to be a prohibited firearm.”.

Section 23(a) here amends the definition in the Principal Act of “firearm” to change a loophole whereby a faulty blank-firing pistol wasn’t a firearm, but was when it was repaired. This form of general housekeeping is an example of what a “Miscellaneous Provision” should be.

Section 23(b) then continues with the relatively straightforward act of adding the definitions of “prohibited firearm” and “prohibited ammunition” as being the firearms and ammunition defined under Section 2C of the Firearms Acts (also introduced in this Bill) . Of course, it is only relatively straightforward, because there is already a definition of “prohibited weapon” contained in Section 1 of the Firearms Acts:

“prohibited weapon” means and includes any weapon of whatever description designed for the discharge of any noxious liquid, noxious gas or other noxious thing, and also any ammunition (whether for any such weapon or any other weapon) which contains or is designed or adapted to contain any noxious liquid, noxious gas or other noxious thing;

Therefore what we see here may potentially the first acknowledgment in legislation that a “firearm” is not a “weapon” as has been said many, many times in many other places by shooters – there are 297 separate mentions on this point in boards.ie alone…

–o–

We proceed with Section 24, which amends the act to allow people to carry blank firing guns without a licence if so authorised by their local superintendent, which the Minister feels is obviously a piece of good news for those officiating at athletics races and training gundogs and so forth. Of course, there is the argument that this particular use case has been addressed since 1964 by Section 2(4)(g) of the Firearms Acts, as amended, which exempts from the requirement to have a firearms licence the following:

the possession, use or carriage of a firearm or blank ammunition for the purpose of starting athletic races by a person who stands authorised in that behalf under this section,

Indeed, the current Section 2(4)(g) wholly encompasses the proposed amendment here. There is simply no case where this amendment exceeds or is exceeded by the current law. So the purpose of this particularr amendment seems elusive unless the Minister is unaware of the contents of 2(4)(g).

–o–

Section 25 begins the major changes by introducing Section 2C into the Firearms Acts, allowing the prohibiting of firearms or ammunition by the Minister under a wide range of criteria.

The trouble with granting new powers to a Minister is that when the Minister in question drafts those new powers, there inevitably tends to be a dearth of checks, balances or even rudimentary oversight for that matter. This was seen before when Minister McDowell drafted the Criminal Justice Bill 2004 introducing Section 2B in the Firearms Acts which allowed him to designate restricted firearms and ammunition under precisely the same set of criteria that Minister Ahern is specifying in this amendment (one presumes that copy-and-paste was the method used by the drafters here as Section 29 of the 2004 Bill and Section 25 of the 2009 Bill are virtually word-for-word identical).

And, as in 2004 when section 2B was introduced by Minister McDowell, this amendment is the source of considerable disquiet and concern in the shooting community. Whilst the dangers inherent in the possession of firearms are in fact acknowleged by all members of this community and appropriate measures are taken to address them, the simple fact remains that the limitations on the issuing of firearms certificates imposed by Section 4 of the Firearms Act, in conjunction with those imposed by the wider EU laws in this area, are more than sufficient to address any reasonable concerns. The simple fact is, Section 4(2)(b) specifically prohibits the issuing of any certificate to any individual for any reason unless that person “can be permitted to possess, use and carry the firearm and ammunition without danger to the public safety or security or the peace”; and moreover, the Supreme Court case of Dunne-v-Donohue was explicit in its conferral of the by-now infamous status of persona designata upon the local Superintendent in matters of firearms certification, thus ensuring that even the High Court is unable to direct a Superintendent to issue a certificate where the Superintendent justly feels that the public safety would be put at risk by issuing a certificate. It is difficult to see why the Minister feels his judgment in this area should exceed that of the local Garda Superintendent, who has as a matter of course the technical support from Garda HQ for such matters as background checks and technical advice via the Garda Firearms Policy Unit under Superintendent Fergus Healy.

It should be noted as a general point relating to firearms that when the legislation framing new powers such as these is drafted in such a manner as this, technical aspects of that which is being legislated for can act as a potential banana skin for the unwary or uninformed Minister, or worse, his unwary electorate, who discover that he has unintentionally designated all Olympic air rifles as Restricted or Prohibited while attempting to so designate what he refers to as “assault shotguns” (as has happened in the past until the intervention of the NTSA with the Department of Justice).

It is not a simple manner to define a specific form of firearm under this amendment. Even the major distinctions are fraught with edge cases. What is the difference, for example, between a short rifle and a long pistol? This question has led to the re-licensing of ‘long-arm’ pistols in the UK despite the pistol ban there on the basis that legally, these pistols qualify as rifles. How does one designate between a shotgun and a rifle, when such things exist as shotguns with rifled barrels (for solid slug ammunition for deer-hunting in the US); and how does one deal with combination firearms which may have two side-by-side shotgun barrels mounted above a central rifle barrel (a configuration favoured in Germany for the hunting of wild boar)?

These “simple” tasks tend to become less simple upon actually attempting to carry them out; and, as in 2004 with the introduction of section 2B to the Firearms Acts, the Minister has indicated no intention of creating any legal avenue for appealing his decisions under this section in the event of such mistakes being made.

There is also the wording of Section 2C(2) in this amendment, which makes it an offence (with a penalty of up to €20,000 and a seven-year jail sentence) for putting on display any prohibited firearm or prohibited ammunition. While the curator of the various national museums are happily exempted by Section 2C(4), a private individual who has as a decoration a ‘bullet board’ on their wall might in the worst case find themselves facing a stiffer penalty than common sense would seem to dictate appropriate for a tacky sense for interior decoration. While the Minister’s efforts to address a lack of art appreciation in some parts of the country might be considered laudable by those on the Arts Council, I suspect even their refined tastes might find this particular provision to be somewhat unpalatable.

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Section 26 is a rather convoluted amendment which is intended to say that instead of handling an artificially-created high workload on July 31 every year, the 235,000 firearms certificate renewals will be broken up into a number of groups and each group will be given a date to come in and reapply for a firearms certificate, and that anyone with a restricted firearm will be in the first group by default.

While the necessity of this section can be argued well, the drafting leaves much to be desired. It takes several readings – with reference to both Section 30 of the 2006 Act and Section 38 of this Act, as well as their concomitant cross-references to interpret this section, and even then multiple readers may well produce multiple interpretations along with supporting arguments for those interpretations. Indeed, there has already been much confusion in the shooting community on several points in this section.

This amendment requires all firearms certificate holders, regardless of how long they have held their certificates for, to re-apply for new certificates, not merely to renew their existing certificates. The motivation for this is unclear, but it should be noted that the Minister has stated to the Garda class of 2009 upon their graduation earlier this year that he intends to have all 200,000 re-applicants provide character references. While it could be argued that the demand for a character reference to continue possession of a firearm (after years of prior possession of said firearm) implies a character defect in the applicant, and that thus an unimpeachable reference would be required; I cannot help but to feel it would be an unjustified attack on the good name of 200,000 people who have all been personally vouched for in writing by a Garda Superintendent.

It should also be noted, that even if this slander were to be accepted as being necessary for some as-yet-undescribed technical reason, the majority of these 200,000 people have – for reasons of personal security – not actually advertised to anyone outside of their family and local shooting club that they own a firearm. Indeed, the Minister and the Gardai have advised of late that were these people to advertise that they own a firearm, they would be targeted by roving gangs seeking to steal said firearm. Should the Minister pursue this requirement for references, these 200,000 people may now be required to identify one person to whom to disclose this ownership to (I say one because surely the Superintendent who has for years personally, and in writing by approving their certificates, vouched that the applicants are of good character). This represents a significant breach of personal security; an odd requirement to foist on people who are required by law to ensure secure storage for their firearms, and who are being cautioned by the Minister and Commissioner to take especial care with regard to that storage.

This is not, by the way, even touching on the magnitude of the Garda workload imposed by the task of checking 200,000 character references (or double that should the Garda Superintendents be ruled to be somehow untrustworthy enough to be ineligible to give a character reference).

It should be noted that by replacing Section 3(3) of the Principal Act with this amendment – even though it is only for an interim, if indefinite, period – the Minister has seemingly been efficient by eliminating the prior requirement to submit the appropriate fee with the application form for a firearms certificate to the local Garda Superintendent (this handling of fees being a task the Minister wishes transferred to another body, most likely An Post); but in his push for efficiency, he has not only deleted Section 3(3)(a), but also 3(3)(b), which required anyone seeking a firearms certificate for the purposes of hunting game to submit their relevant licence (as issued under the Wildlife Act) along with their application form. Thus were I to seek a certificate for a deer-hunting rifle, for the avowed purpose of hunting deer, I would not be required (as I would be today) to also provide my deer-hunting licence. This would seem to be a rather significant deletion from the point of view of public safety since hunting certificates do not require membership of Garda-approved target shooting ranges as a precondition. While this is a temporary condition, and one that will be corrected on the commencement of Section 30 of the 2006 Act, merely choosing to replace Section 3(3)(a) of the Principal Act instead of 3(3) would have avoided it, and if such an easy solution is so evident, the drafting and vetting of this legislation must be called into question, especially given the lengthy preparation period it enjoyed and the last-minute lengthy delays during which there was no consultation with the Firearms Consultative Panel, who would have highlighted such a error.

On a further and more general point, the including of the date of July 31 2009 in the amendment rather arrogantly dictates a timetable by which this Bill must be passed through the various Oireachtas stages of debate and committee work, and then passed by both the Dail and President and enacted by the Minister. Indeed, should any delay be encountered by this Bill which would prevent its enactment by July 31 2009, some 235,000 certificate renewals would be put at risk, leaving an estimated 200,000 people in contravention of the Firearms Acts (for a rather serious offence, to whit, the possession of unlicensed firearms and ammunition)because no provision has been made for the possible failure or postponement of the Bill. This arrogance is continued by the issuing of the Minister this week (on June 9) to the shooting community of the instructions for how Section 26’s provisions will be enacted later this year; instructions which brook no alteration or delay of the Minister’s Bill by any member of the Dail or Seanad or even the President.

–o–

Section 27 allows the Minister to issue guidelines on the application and operation of the Firearms Acts. This is a significant problem, not because the idea is heinous (though frankly, with the cynical, even arrogant attitude thus far expressed by the Minister in his dealings with the shooting community it would be somewhat easier than perhaps it should be to use that term), but because it creates confusion around the persona designata status of the Superintendents.

If the Minister for Justice issues a guideline to a local Superintendent that requires all applicants to have 24 hour security guards to secure their firearms, will that local Superintendent see this as a guideline, or as an edict from a person whose office might permanently impair that Superintendent’s career were he to opt to not follow it? It would seem that most Superintendents would in fact treat such guidelines as being de facto laws, and it was this precise point that the Supreme Court in Dunne -v- Donohue ruled was beyond the Commissioner because the drafting of the Firearms Acts was a power reserved for the Oireachtas (and not the Minister).

It also is also worring because no other area of garda operations allows the Minister for Justice to issue such guidelines to gardai directly. Normally, such operational matters are the purview of the Garda Commissioner in the interests of preserving a seperation of powers. And since the Commissioner has already been empowered explicitly by the Criminal Justice Act 2006 (and implicitly since the founding of the Gardai) to issue such guidelines to the Superintendents, one must wonder why the Minister feels he also requires such authority in this case. Do the Minister and the Commissioner differ irreconcilably in regard to what guidelines should be issued?

–o–

Section 28 introduces the idea of paying your licence fee at a specified place other than the local Garda station. It’s not a horrible idea, but it does complicate the process of application as it is unclear as to whether the fee must be paid before or after the certificate is issued. It seems clear the fee must be paid after the certificate is granted, but whether the Gardai issue the certificate once granted is not specified. If the fee is paid elsewhere, issues arise such as how the fee-collecting body knows the certificate has been granted, how long the applicant has to pay the fee, whether the certificate must be shown to the fee-collecting body to pay the fee, how the Gardai know the fee has been paid when the applicant seeks to have it issued to him in the local station, and so on and so forth.

There are also significant issues with respect to personal security here – many in the shooting community, as mentioned above, take pains to not disclose to random people the fact that they own firearms, for obvious reasons. Queueing in public at the local post office to pay a firearms certificate fee would seem to many to be a substantial risk to this personal security, especially as the employees used by An Post for the handling of this task, as well as the measures used by An Post to secure the personal data involved, are unknown quantities. Again, it seems odd for the Minister and the Commissioner to caution firearms owners with regard to their personal security whilst simultaenously drafting legislation to require those firearms owners to publicly identify themselves in this manner.

The last part of Section 28 introduces the much-vaunted handgun ban. In short: if a shooter has a pistol which they obtained a certificate for before 19 November 2008, then they get to re-apply for their certificate for it this year. Everyone else who has a fullbore pistol or a pistol which is not designed for the Olympics will lose it, regardless of what they were required to spend on the installation of monitored alarms, safes, security upgrades and so forth during their application process; and no further applications for fullbore or non-Olympic pistols will be entertained.

As an Olympic shooter, I find myself dispondant reading this. From a purely selfish point of view, my IZH-46M air pistol is safe (for now), and so my sport has a cheap entry point, as required by the Irish Sports Council. But in the case of Olympic smallbore pistol shooting, beginners will have to invest nearly a thousand euro to get started (because a pistol such as a Browning Buckmark or a Ruger Mk2 isn’t specifically designed for the Olympics, even though it’s perfectly servicable as an entry model pistol for our style of shooting). That’s a death knell for the sport, turning it from an actual sport into a curiosity, a pastime for old men.

In fact, given the Minister’s stated goal of banning what he regards as dangerous firearms while not affecting our sports, this amendment must be regarded as a failure as merely guts the Olympic sport and penalises those who opted to cooperate with the Government by awaiting the full implementation of the policy decided upon in the 2006 Criminal Justice Act with regard to pistols. It must be pondered – if the Minister will act so cynically with those who opted to support him by waiting whilst in effect rewarding those who took legal action against him in the years leading up to 2004, then what motive is there for anyone to cooperate with the Minister in the future?

–o–

Section 29 is a ban on ‘practical or dynamic shooting’ which the bill defines as ‘any form of activity in which firearms are used to simulate combat or combat training’. On the face of it, this is basicly intended to ban IPSC and similar forms of shooting in Ireland. This in and of itself is a major point of contention for those currently shooting IPSC disciplines. Personally, I don’t shoot these, nor have I any real interest in shooting them, nor do I feel they are incapable of representing themselves (indeed I know that this is not the case), but I do feel that personal preferences with regard to sport should not dictate legislative policy. I question the wisdom of banning a sport by legislation which refers to ’simulated combat training’, which is not exactly the most exclusive and explicit of descriptions. At one time after all – and I mean within living memory – shooting at bullseye targets was the standard combat training used by armed forces worldwide.

I think it’s probably apropos to note that there certainly are certain groups in Ireland which appear to have been conducting bodyguard training using firearms, while based within the Minister for Justice’s own constituency. Curtailing activities such as these would certainly be within the Minister’s purview, and indeed many would argue that it was his duty to curtail them; and few if any in the shooting community would argue otherwise. The activities of these groups is not only seen as undesirable by the shooting community, but as an actual threat to public safety. Some within the community have even pointed out publicly that these groups’ advertised qualifications to run such courses have been denounced as fraudulent by the professional soldiers with whom these groups would claim to have trained and/or served with.

That such undesirable elements could conduct such training ‘under the Minister’s gaze’, so to speak, would seem to say that there is a definite problem to be addressed. That this amendment to the law addresses such a problem and that the subsequent loss of a genuine internationally-practised sport was a mere side-effect might even be argued; were it not for the fact that this section makes explicit exemptions for the case where the firearms used for such training do not exceed a muzzle energy of 16 joules (a measure designed to permit the continued use of airsoft and paintball markers in “combat simulation”). The upshot of which exemption is that the undesirable groups mentioned above can purchase perfectly indistinguishable replica firearms and continue their training, still within the Minister’s constituency, and now that firearms certificates are no longer being issued, under even less scrutiny than before.

–o–

Section 30 introduces a new section to the Firearms Act which deals with airsoft and similar low-powered devices where the muzzle energy does not exceed 1 joule. As I have little expertise with airsoft, or contact with its community, I will forego any detailed look at this section for fear of stepping beyond my own competencies.

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Sections 31, 32 and 33 introduce a ban on personal imports of firearms or ammunition. All firearms and all ammunition now brought into the state must, under these amendments, come through an Irish Registered Firearms Dealer. While this initially sounds justifiable and reasonable, there are two main caveats.

Firstly, there is the question of what constitutes an importation. Under existing law, if a person travels abroad to a shooting competition, such as the Olympic Games in London in 2012, with their licenced firearm in their possession in order to compete, that person is not exporting their firearm. This is provided for by Section 16 of the Firearms Act which deals with exports. And under existing law, when that same person returns to Ireland with their firearm (and hopefully a medal), they are not importing their firearm. This is provided for by Section 17 of the Firearms Act, which deals with imports and which says – in essence – that if you have a firearms certificate for the firearm, you are not importing it when you travel into the country with it. Under the proposed amendments, this return journey would, under Irish firearms legislation, be considered an importation without a licence, and thus a serious offence under the Firearms Act.

There is, allegedly, a loophole in the existing law. Should I purchase a firearm in – for example – Germany, and have the firearms dealer there hold the firearm for me while I obtain a firearms certificate in Ireland for that firearm, I may then collect it and return to Ireland with it without this being classified as an importation, so long as the certificate is granted by the local Superintendent. I say that this is an alleged loophole for three reasons – firstly because it was a situation explicitly introduced by Section 21 of the 1964 Firearms Act; secondly because it does not mean that control of importations is lost, merely that it is in the hands of the local Garda Superintendent rather than in the hands of the Minister; and thirdly because this state of affairs is precisely how the EU law in this area intends that such transfers should work.

EU directive 91/477/EEC, which was only updated last year, created legal instruments such as the European Firearms Pass explicitly to provide for freedom of movement within the EU for hunters and target shooters and their firearms. A report on this directive’s implementation, written and accepted by the Council in 2000, is explicit on this point: “It is important to note that even if Member States are entitled to take more stringent measures, these measures have to respect the rules of the Treaty, and in particular, the rules of the internal market. Although Article 30 of the Treaty provides for a possible derogation with regard to the free movement of goods on the basis of public safety, the measures in question have to be necessary and proportionate to the objective pursued.”

It is hard to see how this measure would be seen as necessary (given that the existing law has been in operation since 1964 without incident) or proportionate (since this proposed amendment not only prevents personal imports, but also prevents return travel to other Member States in the EU by shooters with firearms already licenced in Ireland, in direct contravention of the purpose of 91/477/EEC).

Confusingly, while the return journey from the London Olympics referred to above would be an offence under the Firearms Act, it would not be an offence under 91/477/EEC, which has been transcribed into Irish legislation with equal weight to the Firearms Acts. Thus we have the predicament that, should these amendments be passed, a return journey with a licenced firearm to an EU Member State would be an offence under one branch of Irish law, but explicitly permitted under another branch which is explictly granted equal weight to the first.





The second caveat is that at the moment, when a shooter personally imports a firearm from the EU, he is not purchasing a firearm “from the back of a lorry” somewhere in a failed state with no oversight, but instead is purchasing from a Registered Firearms Dealer in another EU Member State (and thus the transaction is controlled and overseen and legislated for on both sides). By legislating to prevent this purchase overseas, the Minister is creating a de facto state-sanctioned monopoly within Ireland for Irish-based RFDs – a policy it is hard to reconcile with the philosophy of the common market the EU holds as its raison d’etre.

From the point of view of the shooting community, it is equally undesirable. At present, RFDs in Ireland are notorious for overcharging, and while there are exceptions, buying Irish in the main means very poor value for money. For smallbore ammunitionas used by Olympic shooters, Irish prices are presently between three and four times the prices in Northern Ireland or the UK or on the continent. For actual firearms the difference in price may be a few hundred euro more when buying from an Irish RFD, and for Olympic target shooting firearms, the difference is that Irish RFDs will not have them in stock because they feel the market is too small for economic viability. Several major dealers have already been asked if they will revisit this policy if personal imports are banned and have stated that they will not revisit it because it will still be unprofitable for them to do so.

From the point of view of the shooters, then, these amendments are a strangulation of the Olympic target shooting sports by economic means.

–o–

Section 34 increases the penalty for carrying knives in public (which is nothing to do with firearms, but which one presumes is covered in the firearms section because the original act it amends was the Firearms and Offensive Weapons Act 1990).

–o–

Section 35 makes it an offence to carry a replica imitation firearm in a public place. Why this explicit statement is needed in law is unclear, since the Firearms and Offensive Weapons Act 1990 already grants superior powers to the Gardai, making it an offence to carry in public any item the arresting officer thinks may be used in any crime.

The remainder of Section 35 has to do with airsoft and authorisations for airsoft sites and as before, I do not wish to comment on areas outside of my own competency.

–o–

Section 36 gives the Gardai the power to search your person or vehicle without a warrant if they believe a replica firearm is being carried in public. Anything found may be seized pending prosecution. What happens to people carrying real firearms in this case is hopefully that the production of a valid firearms certificate satisfies the officer present. The question of how one carries airsoft equipment by car to a valid airsoft event without said car going through a public place is hopefully merely an academic one.

–o–

Section 37 states that any non-resident obtaining a firearms certificate will get a one-year licence, instead of a three-year licence. This may sound like an esoteric circumstance, but Irish firearms legislation does not contain the concept of a visitors permit as NI law (and UK law, and indeed law throughout the remainder of the EU) does. Should we wish to hold an Olympic Training Camp for the London Games in 2012, any competitors looking to use such a training camp would be required to apply for a full firearms certificate (complete with all of the preconditions and prerequisites faced by an Irish applicant seeking a certificate for a more indefinite period). This amendment states that such a certificate will not in fact last for three years.

It does not, however, state that such a certificate will cost any less than the full rate paid for a three year certificate. And requiring such a fee would seem to be an economic disadvantage for anyone attempting to woo an Olympic team from abroad to use Ireland as a base for training for the London Games, especially when just across the border in Northern Ireland a visitors permit can be arranged within 14 days for a nominal fee, or for free – where one is even required – in many EU member states such as France which are equally competitive in terms of geographic location. Groups such as the NTSA have lobbied for years for such a visitors permit because of the promotion to the sport and to tourism that it would represent – sadly the opportunity to introduce this and capitalise on the 2012 Games’ nearby location has not been taken advantage of by the Minister in this Bill.

–o–

Section 38 completely rewrites section three of the Firearms Act. It eliminates paying the fee to the Gardai with the application form and it accounts for the staging of renewals mentioned above. But apart from that, it duplicates the prior section three word-for-word, if not section number for section number. Likewise, the concerns raised above with regard to the introduction into the certification process of An Post, as well as withthe staging of renewals still apply here.

–o–

Section 39 repeals the as-yet-uncommenced section 40 in the 2006 Act which dealt with the issuing of reloading licences, a significant requirement for fullbore rifle shooters, including ISSF 300m shooters. The whole reloading issue is supposedly to be dealt with in the rewrite of the Explosives Act later this year; though no justification has yet been given for the abandonment of the significant effort that went into the drafting of Section 40 of the 2006 Act.

–o–

And that concludes the sections that affect firearms legislation.

23.—Section 1 of the Principal Act is amended—(a) in the definition of “firearm” in subsection (1) (as substitutedby section 26 of the Act of 2006) by the insertionin paragraph (f) of “or paragraph (h)” after “foregoing25 paragraphs”, and (b) by the addition of the following definitions after the definition of “muzzle energy”: “ ‘prohibited ammunition’ means ammunition that is declared by order under section 2C of this Act to be pro30 hibited ammunition; ‘prohibited firearm’ means a firearm that is declared by order under section 2C of this Act to be a prohibited firearm.”.