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Convoluted NFA Definitions

Dave Hardy points out something about the NFA and shotguns over at CleanupATF.org that I think might be incorrect. Dave says:

ATF has consistently taken the position that a shotgun that leaves the factory with a pistol grip and no buttstock, and is kept in that condition, is a pistol rather than a shotgun.

Except I don’t think that’s the case that they consider it a pistol. A pistol grip shotgun is still a shotgun [UPDATE: It’s not a shotgun either] as long as its overall length is greater than 26 inches. The National Firearms Act’s definitions are highly convoluted. If you check the ATF NFA Handbook a few of their footnotes on page eight explain their view of the law. It rests in the definition in 26 USC 5845 of firearms and shotguns. See here:

(a) Firearm The term “firearm” means (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length […]

(d) Shotgun The term “shotgun” means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of projectiles (ball shot) or a single projectile for each pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed shotgun shell.

So I believe ATF still considers a pistol group shotgun to be a shotgun [See UPDATE below, they consider it to be a ‘pistol grip weapon’], provided its overall length is greater than 26 inches. It is considered to be a weapon made from a shotgun, but because of its overall length, not subject to the provisions of the National Firearms Act. I believe if you were to saw off a shotgun with a pistol grip, it would fall under the definition of “Any Other Weapon” or “AOW” rather than a short barreled shotgun.

The interesting thing about shotguns is they would be subject to the NFA provision that regulates destructive device, except for language in the definition thereof which reads:

any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes

In 1994, this definition was used to reclassify the “Street Sweeper” shotgun as a destructive device under the National Firearms Act, since it was deemed by the Clinton Administration to have no sporting use. The same thing could be done with pistol grip shotguns, if the Obama Administration were so inclined. Definitions in the NFA are screwy, and there’s a lot of room to stick it to gun owners with nuance. This is something we should look at cleaning up at some point if we ever have the political opportunity.

UPDATE: A commenter points out this bit from ATF:

Pistol Grips and Shotguns Firearms with pistol grips attached: The definition of a shotgun under the GCA, 18 U.S.C. § 921(a)(5), is “a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of an explosives to fire through a smooth bore either a number of ball shot or single projectile for each single pull of the trigger. Under the GCA, 18 U.S.C. § 921(a)(29)(A), handgun means “a firearm which has a short stock and is designed to be held and fired by the use of a single hand.” Federal law provides under 18 U.S.C. 922(b)(1), that if the firearm to be transferred is “other than a rifle or shotgun,” the purchaser must be 21 years of age or older. Certain commercially produced firearms do not fall within the definition of shotgun under the GCA even though they utilize a shotgun shell for ammunition. For example, firearms that come equipped with a pistol grip in place of the butt stock are not shotguns as defined by the GCA. A firearm with a pistol grip in lieu of the shoulder stock is not designed to be fired from the shoulder and, therefore, is not a shotgun. Since it is a firearm “other than a rifle or shotgun,” the purchaser must be 21 years of age or older. Additionally, interstate controls apply. The licensee and transferee must be residents of the same State. Other questions raised pertain to entries made in the licensee’s required records with respect to firearm “type.” These entries should indicate the firearm type as “pistol grip firearm.”

Clear as a bell. Remember that next time Brady or some other group says firearms are unregulated. So they don’t mention that that it’s a “handgun” but they also don’t mention that it’s a “shotgun” either. It’s some other weird category called “pistol grip firearm” even though it’s treated the same way as a handgun for purposes of 922, since it’s not a rifle or a shotgun. Got that? I think my brain is going to explode.

28 Responses to “Convoluted NFA Definitions”

  1. AZ-Mike says:

    I wanted to buy a Mossberg 500 with a pistol grip from my local gun shop a couple of years ago, but they wouldn’t sell it to me because I was under 21, and according to the information they had from the ATF, it is a pistol because it is not designed to fire from the shoulder like a normal long gun. This seems to be confirmed by 18 U.S.C. Chapter 44 Sec. 921 Subsection 5, which says:

    “”The term “shotgun” means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of an explosive to fire through a smooth bore either a number of ball shot or a single projectile for each single pull of the trigger. “”

    —–

    So, a pistol-grip equipped shotgun isn’t really a shotgun, it’s a really big handgun, according to the ATF.

  2. Jeff says:

    Maybe this will help, from the November 2009 FFL newsletter from ATF-
    http://www.atf.gov/publications/newsletters/ffl/ffl-newsletter-2009-11.pdf

    Pistol Grips and Shotguns
    Firearms with pistol grips attached:
    The definition of a shotgun under the GCA, 18 U.S.C.
    § 921(a)(5), is “a weapon designed or redesigned, made or
    remade, and intended to be fired from the shoulder and designed
    or redesigned and made or remade to use the energy of
    an explosives to fire through a smooth bore either a number
    of ball shot or single projectile for each single pull of the trigger.
    Under the GCA, 18 U.S.C. § 921(a)(29)(A), handgun
    means “a firearm which has a short stock and is designed to
    be held and fired by the use of a single hand.” Federal law
    provides under 18 U.S.C. 922(b)(1), that if the firearm to be
    transferred is “other than a rifle or shotgun,” the purchaser
    must be 21 years of age or older.
    Certain commercially produced firearms do not fall within
    the definition of shotgun under the GCA even though
    they utilize a shotgun shell for ammunition. For example,
    firearms that come equipped with a pistol grip in place of
    the buttstock are not shotguns as defined by the GCA.
    A firearm with a pistol grip in lieu of the shoulder stock is
    not designed to be fired from the shoulder and, therefore,
    is not a shotgun. Since it is a firearm “other than a rifle or
    shotgun,” the purchaser must be 21 years of age or older.
    Additionally, interstate controls apply. The licensee and
    transferee must be residents of the same State.
    Other questions raised pertain to entries made in the
    licensee’s required records with respect to firearm “type.”
    These entries should indicate the firearm type as “pistol grip
    firearm.”

    Clear as ATF can make it….

  3. Jim W says:

    Sawn-off pistol grip shotguns that never had shoulder stocks are smoothbore pistols, a class of AOW.

    Rifled pistols that fire shotshells over .50 diameter (everything over 410 gauge) are potentially large-bore destructive devices unless they can be shown to have a “sporting purpose.”

    To be a “short barreled shotgun” something must first be a shotgun- a shoulder fired, shot throwing weapon.

  4. Sebastian says:

    I think this might be one of those areas where who knows how to interpret the law, so fuck it, it’s a weapon made from a shotgun. At least under the NFA, which doesn’t subject it to those requirements.

    But I guess it could be a handgun under the 18 USC 921 definition, for the purposes of the Gun Control Act. But can you argue a 26+ pistol grip shotgun is designed to be fired by a single hand? The Serbu Super Shorty seems to be an AOW, however, because it falls outside of that definition.

    But it seems to there would be room to reclassify these as either a DD or maybe even an AOW and still be in safe territory definition wise.

  5. Justin Buist says:

    I believe all the confusion stems from the ATF’s old practice of just putting two choices for the type of firearm on the dealer portion of the 4473: Long gun and pistol.

    Basically the GCA requires one to be 21 to buy anything but a shoulder fired long gun. There’s an exception for those that sets the age limit at 18. So, when a dealer sells a PGO shotgun (which isn’t a shoulder fired weapon) they were instructed to check the pistol box. This kept everything nice and tidy for the ATF and the dealer knew that the purchaser had to be 21 if the tick mark went into the pistol box.

    Remember: Field agents aren’t always that bright* and neither are gun dealers. The simpler the better less somebody get snared by a legal matter on accident. Telling dealers to run a PGO shotgun as a pistol makes it easy for them.

    Now they’ve included an “other” box which makes it a little more clear, at least from the outside looking in. A PGO shotgun isn’t a shoulder fired long gun, nor is it a pistol, it’s “other” — and that category requires the person be 21. Same as receivers that are neither rifle or pistol or shotgun. Now everybody is happy. Well, happy as one can get when dealing with the ATF and gun laws.

    And, for what it’s worth, I’m happy to see the ATF adopting their forms to fit what’s actually out there on the market and educate dealers on how to proceed with the forms. Took long enough.

    *: Anybody else run across an FFL holder that insisted on no abbreviations anywhere on the form thanks to their local field agent? Yeah, great, a 1st grader knows what “St. NW” means in an address but this was once forbidden by the ATF. Morons.

  6. Justin Buist says:

    Oh, snap. I meant to point out that the NFA definitions have little bearing on the GCA definitions when we’re talking about Title I firearms. If you try and draw lines connecting the two you’ll go cross eyed and your significant other will think you had a seizure when you stab yourself in the eyeball with a pencil.

  7. Anon Reader Dude says:

    There’s an issue you guys are missing.

    What’s so screwed up about that letter Jeff quoted, and similar releases from BATFE, is that they imply that every pistol-grip only (PGO), 12 or 20 gauge Mossberg Cruiser is an unregistered destructive device (DD) under the NFA. Not “could be reclassified as a DD in the future” — it arguably is one, now.

    Here’s why. According to the definition of DD in the NFA/GCA, “any type of weapon” that uses gunpowder and has a bore larger than .50 inch is considered a destructive device, UNLESS it falls under a statutory exception. There are a few minor exceptions not relevant here. The major exception applies to “A SHOTGUN” [N.B.!] “which the [Attorney General] finds is generally recognized as particularly suitable for sporting purposes.” That exception is why, e.g., a stocked 12 ga Rem 870 or other ordinary commercially sold shotgun is not a DD, even though it is a weapon that uses gunpowder and has more than a .50 cal bore — because it’s a “shotgun,” and the feds have deemed it to be a shotgun of a type that is particularly suitable for sporting purposes. (Query whether a prohibition on shotguns that exempts only those that are “recognized as particularly suitable for sporting purposes” is constitutional after D.C. v. Heller … how about particularly suitable for self-defense? But set that aside for present purposes.)

    NOW THEN – we are told, in that BATFE letter Jeff quoted, and apparently also in some earlier ATF letters going back to the ’90s, that a pistol-grip-only smoothbore, such as a factory Mossberg 500 Cruiser, IS NOT A “SHOTGUN.”

    See the problem that creates? If it’s not a shotgun, then logically it cannot be eligible for the “sporting purposes” exception to the DD definition. By its plain language, that exception only extends to “shotguns,” which BATFE says a PGO gun is not. Thus, since the PGO gun has a bore of more than .50 inch diameter (unless it is a .410 bore), then by the statutory definition, it would seem to be a DD.

    In sum: until BATFE retracts or clarifies these letters by declaring that a PGO smoothbore gun actually IS a “shotgun” — at least for the limited purpose of applying the “sporting purposes” exception to the DD definition — a factory Cruiser would seem to be a DD. In fact, until the gun is reclassified as a “shotgun,” the statute’s language arguably doesn’t even give the feds the discretion to exempt it legally from the definition of DD.

    I know BATFE and DOJ don’t currently treat these guns as DDs and traditionally have not done so, but in light of the stated interpretation – a PGO is not a “shotgun” – they’d have a hard time articulating the legal reason why they don’t.

    What a clusterf***.

    DISCLAIMER: I’m not your lawyer, BATFE’s lawyer, or Mossberg’s lawyer, and this isn’t legal advice. I’m just presenting these thoughts for everyone’s consideration. Frankly, I’d be thrilled if someone can show me where I’m wrong.

  8. Anon Reader Dude says:

    The only other exceptions to the DD definition that might apply to the PGO guns are: “Any device which is neither designed nor redesigned for use as a weapon” and “Any other device which the Attorney General finds is not likely to be used as a weapon.”

    Has the AG (or earlier, Treasury) ever made such a finding for the Cruiser or similar pistol grip only smoothbores? It seems kind of awkward — these things are pretty clearly intended partly for defense, i.e., for use as a weapon. Still, I could imagine that as a possible way out of the muddle.

    Sebastian, if you think this is too sensitive to kick around in a public forum, just delete. I don’t want to give anyone ideas.

  9. ctdonath says:

    After much analysis http://www.donath.org/Rants/NYSpecial/ I concluded such an item is NOT regulated at all under NY law, so long as the barrel is over 18″. Under 18″ is different: when I bought an NFA AOW version (14″), it went on my NY carry permit (clerk did a double-take at the caliber listed; I assured her it was “collectable”). Federal, PA, and other states’ laws may vary.

  10. Well, as somebody who first raised this issue on the net, even before CUATF, and someone who has access to a patriotic snitch on the fifth floor of “the concrete asshole of the universe,” I can tell you that this is causing the Chief Counsel’s Office of the ATF no end of pain, suffering, confusion and angst. This ruling will last only until some defense attorney plunks the ATF newsletter down in front of a judge. Me? I’m going to buy a Mossberg Cruiser whose provenance is demonstrable, cut the barrel down, and then ask Firearm Technology Branch to type classify it. And by the way, it is neither “pistol” nor “shotgun” in ATF parlance but a “firearm” — neither fish nor fowl.

    Mike Vanderboegh
    The alleged leader of a merry band of Three Percenters & one of the principal reasons ATF Counsel James P. “Little Jimmy” Vann thinks he has bees living in his head.

  11. JB says:

    Remember, some Cruisers come with both a shoulder stock and a pistol grip kit – which one is installed when it leaves the showroom determines what it is..? Me brain just ‘sploded…

  12. Anon R. D. says:

    [[SEE DISCLAIMER ABOVE — I’m not your lawyer and this is not legal advice. If my analysis is wrong, please explain why.]]

    Mr. Vanderboegh is correct that, if a factory Cruiser is not a “shotgun,” then cutting it down cannot make it an SBS (short barreled shotgun), because neither the predecessor weapon nor the resultant weapon would be a “shotgun.”

    But, crucially, it probably will make it an AOW (Any Other Weapon). I don’t think the loophole in NFA that Mr. Vanderboegh is hunting for actually exists, even under the current messed-up agency interpretation. He needs to take another, beady-eyed look at the NFA/GCA before cutting down any barrels.

    Remember that one way to be an AOW is simply to be ANY GUN (= uses gunpowder to launch projectiles from fixed ammunition) that is “capable of being concealed on the person” and that is NOT “a pistol or revolver with a rifled bore.” The interpretive letters we’re discussing in this thread suggest that BATFE does not consider a Cruiser a shotgun, but nor do they consider it a handgun. Moreover, even if it were a handgun, it still lacks a rifled bore. And obviously, it is a gun. So if it were “capable of being concealed on the person,” it would be an AOW.

    Why isn’t a factory Cruiser w/ 18.5″ barrel on the shelf of your local gun shop already an AOW? Because in its factory form, with the regular-length barrel, a Cruiser is too big to meet the part of the AOW definition I’m focusing on here. It is not “capable of being concealed on the person.”

    But once you start cutting a Cruiser’s barrel down, as Vanderboegh is (hypothetically) contemplating, it will be wide open for the feds to argue “now that you have shortened it, it IS capable of being concealed on the person, so it is now an unregistered AOW. It is a gun; it is concealable on the person; and it is not a pistol or revolver with a rifled bore. The statute says that any weapon having these three traits counts as an AOW. Your gun does, now that the barrel’s cut down. Have fun in the penitentiary!” I fear this is what would happen.

    I am aware of one Supreme Court case on how small a gun must be to count as “capable of being concealed on the person.” United States v. Powell, 423 U.S. 87 (1975), rejected an as-applied vagueness challenge to the identical language in 18 U.S.C. 1715 (prohibiting the mailing of firearms “capable of being concealed on the person”). The Court upheld the conviction of the sender of a sawed-off shotgun with a 10″ barrel and an overall length of 22 inches. Evidence was presented at Powell’s trial that the gun was concealable by the average person. A Mossberg Cruiser with 18.5″ barrel is already just 28.75″ in overall length, so Powell does not leave much room to maneuver in, in even debatable legal ambiguity.

    If someone with a Cruiser really insists on pressing this point, I suppose a way to do it would be to ask BATFE Tech Branch, in advance, for a letter ruling on whether they’d deem a Cruiser that was cut down a bit, but still larger than the gun in U.S. v. Powell, one with (say) a 15″ barrel, to be “capable of being concealed on the person.” (I am NOT recommending this course of action, nor am I necessarily discouraging it. Consult your lawyer.) There may also be agency precedent on when a gun becomes “concealable.” I don’t know. My guess is BATFE would default to anything below 18″ barrel is concealable, harmonizing the AOW definition with the SBS definition.

    So much for cutting down a Cruiser. In the end, we’ve got two distinct issues.

    (I) Contra Mr. Vanderboegh, just because BATFE decides a pistol grip only (PGO) smoothbore gun is not a “shotgun” doesn’t mean you can legally cut down the barrel without registering it. At some point in the cutting down process, probably soon if not immediately, it will become “capable of being concealed on the person.” Hence, since it lacks a rifled barrel, it will be an AOW.

    (II) I still think the most bizarre aspect of these BATFE letters is the DD issue I discussed a few comments above. By deeming PGO smoothbores like the Cruiser to be non-“shotguns,” the feds seem to have eliminated the most logical explanation, under current law, of why such PGOs – including factory, 18.5″ guns – are not destructive devices (DDs). This potential problem does not apply to .410 bores, but it would apply to any smoothbore PGO with a bore larger than .50 cal, including 12 and 20 gauges.

  13. ctdonath says:

    FWIW, sub-18″ PGO smoothbores built as such at the factory are registered as AOWs. I have one, and needed a Form 4 to get it (Sheriff: “13 years on this job and nobody ever asked me to sign one of these; enjoy it, and make sure I never hear about it again”).

  14. Geodkyt says:

    ATFE has weighed in on this issue a long time ago.

    A “shotgun-type” gun that has never had a shoulder stock installed, but IS at least 26″ long that later has it’s barrel or overall length shortened becomes an Any Other Weapon.

    Which is why you see ads in just about every issue of Shotgun News for pistol gripped 12-gauge short pump guns that are vividly advertised as “Only $5 transfer tax!!!”

  15. Sebastian says:

    IIRC, originally the NFA was intended to cover pistols as well. They sloppily removed pistols through an exception for rifled barreled pistols, which left, largely in tact, the weird AOW category. Dave Hardy knows a lot more about the history of this than I do, maybe he can chime in if he’s reading.

  16. Anon R. D. says:

    Right. But those guns, made from the factory as short PGOs, fall under a different provision of the AOW definition: “a pistol or revolver having a smooth bore designed or redesigned to fire a fixed shotgun shell.” BATFE says a full-length PGO like a Cruiser is not a pistol or revolver, so that provision arguably might not apply to a cut-down Cruiser. But the “smoothbore gun capable of being concealed on the person” route to AOW-hood definitely does apply to a cut-down Cruiser. Cf. Powell. Again, my hunch is that courts and/or BATFE might deem even a slightly shortened barrel enough to render the gun “concealable,” but I haven’t fully researched the issue.

    Vanderboegh needs to calm down on this one; he’s actively misinforming people.

  17. Anon R. D. says:

    Geodkyt —

    I’m not surprised to hear that.

    So has BATFE rested that conclusion on a determination that any smoothbore with a barrel of less than 18″ length is thereby “capable of being concealed on the person”?

  18. Sebastian says:

    Anon R.D.

    It’s not a determination, it’s in the law. The definition of an AOW is any concealable firearm, it’s just that an exception is made for a concealable firearm that has a rifled barrel…. as long as you don’t put a stock on it to make it an SBR.

    Clear as mud, right?

  19. Geodkyt says:

    I misspoke.

    Barrel length is actually irrelevant, so long as the overall length of the pistol gripped shotgun (never had a stock installed EVER) remains above 26″.

    They apparantly do the same thing with semiauto scale model firing versions of the M1917 and M1919 Browning machineguns.

    So long as the whole kit and caboodle is 26″ long, it’s a Gun Control Act “firearm”, but NOT a “rifle”, “pistol”, “revolver”, “shotgun” or any type of NFA restricted “firerarm”.

    If the OAL of a (never stocked, not already an NFA restricted device in it’s own right) “firearm” is below 26″, it transforms into either “pistol”, “revolver”, or “AOW” status, depending on it’s other attributes. For example — anything with a smoothbore or more than one grip will be an “AOW”.

    This all presumes they don’t decide to class it as a Destructive Device, because it’s bore is over 0.50″, but it is determined to NOT be a “shotgun suitable for sporting”.

    I think ATFE can CLEARLY wave their magic Determination Wand and transform every single AOW over 0.50″ bore size into a Destructive Device on a moment’s whim — it wouldn’t be arbitrary (in the legal sense), because they would be applying the strict letter of the law.

    Heck, they did it with Strikers, and Strikers ARE “shotguns”, which means they meet half the requirement for exemption from DD status just walking in the door. Reclassifying 16, 20, and 12 gauge pump action or semiauto AOWs as DDs is an even shorter reach than reclassifying “Streetsweepers” was.

  20. Anon R. D. says:

    Sebastian, I’m asking what COUNTS as “concealable.” I’m aware that requirement is in the law. The specific barrel length values and overall length values, however, are given in the SBS and SBR definitions. Unless my memory is wrong, they are not part of the statutory definition of an AOW. The only relevant requirement in the AOW definition is “capable of being concealed on the person.” If that’s been equated with the SBS/SBR dimensions [<18" barrel and/or <26" OAL], then that's an agency determination (which, yes, has the force of law). It's not in the statute.

    Hence my question.

    Geodykt, thanks for your response. But my point was that NON-chopped, 18.5" PGOs also appear to be DDs under a literal reading of the law, once BATFE decides they are not "shotguns." They are guns over 0.5" bore. They CAN'T be exempted from the category of DD under the discretionary, "sporting purpose shotguns" exemption, because they are not shotguns.

  21. Joat says:

    The definition for shotgun in 26 USC 5845 includes:
    “…to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of projectiles (ball shot) or a single projectile for each pull of the trigger”

    How is a rifled barrel 12 gauge firearm a shotgun? It does not have a smooth bore. And if it is not a shotgun wouldn’t it have to be a destructive device?

  22. Sebastian says:

    Here’s the full definition of AOW, keeping in mind that an AOW is anything that’s not a Machine Gun, and SBS, an SBR, or a suppressor:

    (e) Any other weapon
    The term “any other weapon” means any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include any such weapon which may be readily restored to fire. Such term shall not include a pistol or a revolver having a rifled bore, or rifled bores, or weapons designed, made, or intended to be fired from the shoulder and not capable of firing fixed ammunition.

    That’s it. If you don’t fall under an exception for that definition, and you’re not one of the things listed above, you’re an AOW. Pistol Grips Shotguns are not AOWs because they don’t meet the criteria of “firearm” for NFA purposes. If they were firearms, they would be AOWs, but they aren’t. As soon as you cut it to under 26 inches in length, it becomes a firearm for NFA purposes, and is an AOW.

  23. Sebastian says:

    Joat:

    Shotguns are only legal by exception at the whim of the attorney general, though the law does require him to exempt firearms that fire shot shells and are generally possessed for sporting purposes. A rifled shotgun isn’t a DD because it fires a shot shell and is exempted. Similarly, a lot of safari rifles that are larger than .50, like 600 Nitro Express, 700 Nitro Express, .577 Tyrannosaur, are all legal because they’ve been specifically exempted.

    I wonder how many shotgunners realize their lovely bird guns are actually on weaker legal ground than someone with a .50 BMG Barrett?

  24. Anon R. D. says:

    Sebastian —

    Pistol Grips Shotguns are not AOWs because they don’t meet the criteria of “firearm” for NFA purposes.

    Wouldn’t that be circular? And it appears incorrect. As we can read, the AOW definition you just quoted does not say anything about having to belong to any of the other enumerated categories of NFA “firearm” in order to be an AOW.

    Precisely not; it just has to be a gun. Section 5845 says “any weapon or device” (n.b. not “firearm,” the technical NFA term) that discharges a projectile using gunpowder is an AOW if it meets one of the listed categories of AOW and doesn’t fall under a listed exception. The category of AOW that’s relevant to a Cruiser is a gun “capable of being concealed on the person,” and since it has a smooth bore it fails to qualify for the “pistol or revolver with rifled bore” exception.

    So again, just judging from the statute, what determines whether a PGO gun is an AOW, or instead is just a non-NFA “pistol grip firearm” thingy, is simply whether its barrel is short enough that the gun is “capable of being concealed on the person,” NOT whether it meets the precise numerical barrel/overall length limits for an SBS/SBR. Those numerical limits are not facially part of the AOW definition; simply read the statute. The only reference to precise numerical limits in the statutory definition of AOW is the clause about single-shot “weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length,” but that’s a very narrow category intended to keep the old Marble’s Game Getter from being an SBS/SBR. Not relevant here, b/c the Cruiser is not a combo rifle/shotgun, and is a repeater.

    Now, again, I would not be surprised at all to learn that the agency has decided to treat the two criteria (viz. barrel length that makes a shotgun an SBS, and barrel length that makes a gun “concealable on the person” for purposes of being an AOW) as being the same, but it would require an act of interpretation to equate them. That’s what I asked about; whether BATFE has adopted that interpretation, and where.

    Damn it, I wish I had my copy of Halbrook’s Firearms Law Deskbook to hand. It’s all about clarifying these kinds of muddles.

  25. Ian Argent says:

    The (possibly) good news is that a lot of the AOW/SBS/SBR hoo-hah seems to be a way to restrict “things that could be made into handguns from things we don’t want to restrict”. Given that after Heller handguns are (arguably) the protected arm of home defense; that puts a lot of this nonsense on shaky ground (particularly SBRs and pistol+foregrip AOW).

  26. Gun Blobber says:

    Ok, so get a PGO shotgun, swap it over to a rifled barrel, and cut the rifled barrel down to 10″ or so. NOW what are we looking at? It was never a shotgun to begin with (since it was not designed to be fired from the shoulder) so it can’t be a Short Barreled Shotgun. It is not an AOW since it does not have a smooth bore, despite being designed to fire a shotgun shell. (This is apparently what allows the Taurus Judge to be sold.) It should be a perfectly legal large-bore Pistol, that happens to fire shotshells. I think that if Serbu sold the Super Shorty with a rifled barrel and no forward grip, they would not have to be sold as AOWs or have a tax stamp.

    I believe that within the next 10-15 years we will see all the SBS/SBR crap go away. They are all just arbitrary distinctions. Cutting down a rifle barrel doesn’t make it more powerful, and concealment is a silly concern when you can easily buy a completely legal pistol in any number of rifle calibers. SBR’s and SBS’s are “in common use” in the military (and thus should satisfy somebody who takes an overly “militia” oriented approach to the 2nd Amendment) and well-suited for self-defense in the home (which the Supreme Court carved out as an important place where the 2nd Amendment applies, in Heller).

  27. Geodkyt says:

    Ian Argent and Gun Blobber —

    1. A rifled barrel gun, with a bore 0.50″ or less, that has never had a stock mounted, that is meets the configuration requirements of a “pistol” or a “revolver”, and is not a “machinegun”, is a “pistol or “revolver”. Even if it once mounted an 18.5″ smoothbore barrel.

    The Taurus Judge is a “revolver” in part becuase it has a rifled bore that is less than half an inch. If it was over a half an inch (i.e., a gauge larger than the punt gun gauge of “C”, or much larger than 40 gauge — and neither of these is a common gauge anymore), it would be a “Destructive Device” if rifled, and an “Any Other Weapon” if smoothbore.

    2. While one can (and I do) read Heller as stating that handguns are protected “arms” under the 2nd Amendment, that does not indicate that a handgun type gun made by sawing off the barrel and stock of a rifle is a “handgun” as referred to in Heller. Likewise, it does not mean that taking a Heller-referenced “handgun” and bolting a fore grip on it means it is still a “handgun” for Heller purposes.

    One is defined in law as not EVER qualifying as a “pistol” or “revolver” (i.e., a handgun), and the other is interpreted by ATFE as not meeting the statutory definition of a “pistol” or “revolver” anymore. Since the law (and the courts) have recognized that a gun may be transformed from one classification to another by changing features, neither case is really likely to be overturned by SCOTUS on the basis of the Heller reference to “handguns”.

    Now, if one could show that these guns meet the 2nd Amendment definition of “arms” (as Heller recognized with handguns), then one may argue that the NFA is unconstitutional in regards to them.

    Honestly, if you want to void parts of the NFA on Constitutional grounds based on “infringement”, 922(o) (at least in regards to the refusal to accept new Form 1’s on machineguns) is really your only real hope.

    922(r) is another gun restriction you MAY be able to convince them to chuck on an “infringement” basis, although since it only restricts the use of imported parts (and Congress HAS the authority to regulate imports), and does not affect a gun made solely from US parts at all, maybe not. You’re not being infringed necessarily, so long as it is legal to build and sell it in the US. . . or so the argument can go.

    Realistically speaking, you aren’t EVER going to see SCOTUS approve the unregulated manufacture, sale, and possession (even by perfectly sane, adult, citizens with no criminal record) of machineguns. They’ll justify that taxation isn’t an infringement of the right to keep and bear, and registration is the only practical method of ensuring the taxes are paid.

    Because they will NOT allow mail-order M16s, in this or any other universe not a libertarian utopia. Nor those “scary evil bad” “sawed off” weapons.

    You’ll see unregulated suppressors before you see that — you can justify allowing suppressors on OSHA and other safety regulations!

  28. Ian Argent says:

    The angle to work to kill the SBS/SBR/AOW grey areas would be (to my mind) thus: Take a Ruger 10/22 and a Ruger Charger pistol. Saw off the 10/22 barrel and stock (legally) and attempt to transfer. Similar results could be obtained by assembling 2 identical AR-15 stripped lowers, one as a pistol and one as an SBR…

    Monkey around at the margins, where the legaltity of the weapon is path-dependent or accessory-dependent (putting a stock on a Glock vs a SUB2000, is another example). Bring up the inherent contradictions in the system – you whould not have to know the history of the weapon cradle-to-grave to know what tax to pay and what paperwork you need to file when you transfer it. Put the right way, loosening the restrictions on SBR/SBS can be spun with a “suitability for use in the home” angle – a removable/folding stock on a short-barreled carbine enhances controllability and accuracy, without compromising portability or storage requirements. Most of the wackiness in NFA is a side effect of pistols originally being filed under AOW; and not wanting people to be able to convert a “suitable for sporting” weapon into a pistol. Part of this groundwork has already been laid by that case out west with the guy who had 2 pistols and one stock, and ONE of the pistols was registered as an SBR, that the ATF tried to nail him for constructive possession of a second SBR and failed. I wish I could remember more details about it.

    OTOH, I would expect a properly-planned attack on “sporting purpose” language to succeed. Heller stands for firearms not needing a “sporting purpose”, but rather a purpose for defense in the home. If we get the “bear” part of “keep and bear” then portability/ease of storage becomes a factor as well.

    922(r) is the last thing I expect to die (and I don’t expect it to) – as you said Congress can completely constitutionally restrict imports. Likewise I don’t expect mail-order rifles any time soon (though I also don’t rule it out; but remember that the firearms industry *supported* that ban and the rise of Amazon shows that to have been wise, at least for the retail FFLs).

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