Wednesday, June 22, 2011

Scattershots at the NFA

Tam calls our attention to some news from the State of Nevada – where the distraught family of a teenager killed by a deranged individual are attempting to assuage their grief by lashing out at (essentially) a bystander. The claim is that a Federal Firearms Licensee should not have sold a pistol-gripped shotgun to an 18-year-old because it was a handgun under federal law; and by doing so the FFL shares liability in the teenager’s death.

That’s an interesting claim. Tam (who has been paid to sling weapons across glass) reads the law as follows: “[A]n FFL can't sell a PGO shotgun to a customer under 21, but shotgun regs in general are a pretty arcane corner of firearms law…” I don’t doubt that’s the prevailing view in the FFL community, but I kind of wonder about that.

(References are from the “Federal Firearms laws” page as maintained by the NRA)

Title18, U.S. Code, Title I, Section 921(a)(3)
(5) 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.

(29) The term "handgun" means - ;

(A) a firearm which has a short stock and is designed to be held and fired by the use of a single hand…

Any Other Weapon (Title II, Sec 5845)

(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, …

Sec 922(a)((b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver:

(1) any firearm or ammunition to any individual who the licensee knows or has reasonable cause to believe is less than eighteen years of age, and, if the firearm, or ammunition is other than a shotgun or rifle, or ammunition for a shotgun or rifle, to any individual who the licensee knows or has reasonable cause to believe is less than twenty-one years of age;

That sets the ground rules about what a shotgun, a handgun, and Any Other Weapon are, and that it shall be unlawful to transfer firearms or ammo to someone under 21 unless the firearm is a rifle or shotgun.

The above, plus the general “conventional wisdom” (backed up by ATF “opinion letters” and other bullying) that the Taurus Judge and other members of that grouping of firearms designs would be AoW if they had (or have, in some cases) smoothbores rather than rifled barrels, leads me to the following thoughts. You could make the argument that a Pistol-Gripped Shotgun (PGW) is not a “shotgun” by federal definition; it’s not “intended to be fired from the shoulder.” If that’s the case, though, I can’t see how it’s a “handgun” either. It’s not “designed to be held and fired by the use of a single hand.” That makes it Any Other Weapon. Which, if it is, means the FFL shouldn’t have sold it to an 18-year-old, true. But it also means that they should have done the entire AoW dance including $5 tax stamp and transfer paperwork. This is where my unfamiliarity with firearms arcana gets me – is it usual to transfer a PGW as an AoW? And what happens if you attach a folding stock to the firearm? This is dangerous ground for the NFA classifications – because we’re into “arcane corner of firearms law.”Like “void for vagueness” grounds. And if I can figure that out as a not very knowledgeable random gun blogger…

Every time I go and look and think about the NFA classifications of non-select-fire firearms, I realize that the whole thing is built on very thin ice; and it gets thinner every day.

2 comments:

  1. Every time I go and look and think about the NFA classifications of non-select-fire firearms, I realize that the whole thing is built on very thin ice; and it gets thinner every day.

    FA firearms, too, as they're currently treated. The NFA's "tax" was upheld on the grounds that the Supreme Court is willing to take Congress's word for it where taxes are concerned: if they say it's a revenue measure, it's a revenue measure, even if a four-year-old can see that the tax is administered in a way specifically calculated to control a non-revenue related activity.

    That's a terrible judicial philosophy that's far too deferential to Congress, but even such a deferential treatment doesn't allow the revenue-measure model to coexist with the Hughes Amendment. If we can get a good case before this Court, I wouldn't be at all surprised to see one or the other struck down. The Court would most likely ignore good law and choose to strike down Hughes for cultural reasons, but I'll take what I can get. Newly produced Thompsons for a fair market cost plus two hundred bucks would suit me just fine.

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  2. Huges Amendment is on thin ice, but the taxability (or not) of select-fire arms is on thicker ice...

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