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Legally Armed: V21N4
By Teresa G. Ficaretta, Esq.
Short-Barrel Rifles and Short-Barrel Shotguns: Understanding Federal Regulations
I. BACKGROUND
Short-barrel rifles and short-barrel shotguns have been regulated under the National Firearms Act since 1934 and under the Gun Control Act since 1968. This article outlines the history of regulation of these weapons under federal law, the types of weapons subject to regulation under the statutory definitions and how to remove them from the scope of the National Firearms Act.
A. Statutory Background and History
During Prohibition, the rise of organized interstate crime led Americans for the first time to view crime as a national rather than a local problem. The Administration of then President Franklin D. Roosevelt proposed a series of crime bills. One in particular would have regulated the sale and ownership of machineguns and concealable weapons, including handguns. The Roosevelt Administration included handguns in the proposed registration scheme under the logic that they are used in crime far more than other weapons. The bills encountered opposition from sportsmen and others who felt the federal government should not intrude into matters best left to the states. But a series of sensational kidnappings and machinegun battles between federal agents and public enemies in 1933 and 1934 increased public demand for federal action. Examples of the crimes in the news at this time include the Kansas City Massacre orchestrated by Pretty Boy Floyd; the kidnapping of St. Paul brewer William Hamm, Jr. by the Barker-Karpis gang; and the kidnapping of Oklahoma City oilman Charles Urschel by Machine Gun Kelly. However, the Administration’s firearms bill stalled in Congress until April 1934, when John Dillinger broke out of jail, robbed several banks and fought several machinegun battles with federal agents. Dillinger’s crimes caused a national furor, and Congress quickly passed the firearms bill known as the National Firearms Act (NFA), but only after handguns were dropped from the bill.
The NFA was enacted as part of the Internal Revenue Code, primarily because it would be a few more years before Congress discovered its authority to enact legislation under the Commerce Clause of the Constitution. Congress was quite comfortable with its constitutional authority to impose taxes, and this is the approach the Roosevelt administration adopted. Challenges to the NFA in federal court were upheld as a valid exercise of the taxing power.
The approach taken in the NFA was novel but effective, as the NFA required any person in possession of “gangster-type weapons,” including machineguns, short-barrel shotguns, short-barrel rifles or other regulated firearms, to fill out an IRS form and pay a $200 registration tax. In 1934 $200 was equal to six months’ wages for an average working man, and many persons surrendered their NFA firearms to law enforcement to avoid payment of the $200 tax and, more significantly, the risk of arrest. This dramatically reduced the numbers of NFA firearms in circulation, with a corresponding drop in violent crime using such weapons.
As readers are aware, the NFA requires registration of all “firearms” listed in the statute (see below), approval of firearm transfers in advance and payment of a $200 transfer tax for each firearm transferred. The NFA also requires that persons who engage in the business of manufacturing the firearms regulated under the statute register with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and pay a special (occupational) tax.
The firearms captured by the NFA have changed over time. As enacted in 1934, the NFA included within the definition of “firearm” a shotgun or rifle having a barrel of less than 18 inches in length. In 1936 language was added to the definition to exclude .22 caliber rifles if the barrel was 16 inches or more in length. The definition was again amended in 1960 to include all rifles within the definition of “firearm” if they have a barrel or barrels less than 16 inches in length. Significantly, the 1960 amendment made by Public Law 86-478 (74 Stat. 149, 150) also included the language currently in the NFA including a “weapon made from a rifle” and a “weapon made from a shotgun” within the definition of “firearm.” As in current law, the term requires that the altered rifles and shotguns have an overall length of less than 26 inches. Language was added in 1968 to cover altered rifles and shotguns that are either less than 26 inches in length OR have a barrel or barrels of less than 18 inches in length for a shotgun, or less than 16 inches in length for a rifle. More on the significance of this language will appear later in this article.
1. Rifles Regulated as Short Barrel Rifles
The statutory definition makes it clear there are four criteria for a weapon to be classified as a short-barrel rifle:
1. The weapon must be designed to be fired from the shoulder, in other words, it must have a buttstock;
2. The weapon must have a rifled bore;
3. The weapon must use the energy of an explosive in a fixed cartridge to fire a single projectile for a single pull of the trigger; and
4. The weapon must have a barrel or barrels measuring less than 16 inches in length.
2. Stocked Handguns are Short-barrel Rifles
ATF and the Internal Revenue Service (IRS), which administered the federal firearms laws until 1972, have long taken the position that the term “short-barrel rifle” includes a stocked handgun. Rulings issued by the IRS in the 1960s make it clear that pistols with a barrel of less than 16 inches in length with an attachable shoulder stock, whether attached to the pistol or not, are regulated as short-barrel rifles. As long as the pistol and shoulder stock are under the custody and control of the same person, the combination is regulated as a short-barrel rifle. Federal court decisions support this position.
One significant exception to the stocked handgun analysis above must be noted. Many readers will be familiar with kits that include a frame/receiver, pistol grip, pistol barrel, fore-end, buttstock and rifle barrel of 16 inches or more in length. Even though these kits allow the purchaser to assemble the parts into a short-barrel rifle configuration, the Supreme Court held in the 1992 case, U.S. v. Thompson/Center Arms Co., that such kits are not regulated as short-barrel rifles unless and until the possessor “aggregates” the parts for the short-barrel rifle in a manner indicating his or her intention to assemble them into a short-barrel rifle. The court did not find that the parts for the short-barrel rifle must be fully assembled before a short-barrel rifle has been made. Rather, the Court held that placing the parts for the short-barrel rifle in some degree of proximity is sufficient. Thus, persons who purchase Thompson/Center Contender-type kits may use the kits to assemble non-NFA pistols and non-NFA rifles to their heart’s content and need not register them with ATF to lawfully possess the parts. However, before assembling the parts into short-barrel rifle configuration (specifically, the frame, pistol barrel and buttstock), purchasers must file a Form 1 application to make a short-barrel rifle with ATF. Moreover, as stated previously, merely aggregating the parts for a short-barrel rifle could trigger the Form 1 requirement. Unfortunately, neither ATF nor the Supreme Court have defined the degree of proximity necessary to trigger the Form 1 requirement.
3. Shotguns Regulated as Short-barrel Shotguns
Statutory criteria for classification of a short-barrel shotgun are as follows:
1. The weapon must be designed to be fired from the shoulder (it must have a buttstock);
2. The weapon must have a smooth bore;
3. The weapon must use the energy of an explosive in a fixed shotgun shell to fire either a number of projectiles (ball shot) or a single projectile (rifled slugs) for each pull of the trigger; and
4. The weapon must have a barrel or barrels of less than 18 inches in length.
A short-barrel shotgun would result from the combination of a smooth bore pistol-like firearm and a buttstock if the barrel of the firearm is less than 18 inches in length. As with short-barrel rifles, the combination of parts would not have to be assembled to be regulated under the NFA.
4. Weapon Made from a Rifle/Weapon Made from a Shotgun
As noted above, Congress amended the NFA in 1960 to include within the definition of “firearm” a weapon made from a rifle and a weapon made from a shotgun if the overall length of the modified weapon is less than 26 inches. Further language was added in 1968 to cover rifles and shotguns that have been altered to have no buttstock if they have a barrel or barrels of less than 18 inches in length (shotgun) or 16 inches in length (rifle). Congress pursued these amendments to ensure that concealable firearms did not evade regulation merely because rifles and shotguns had their buttstocks cut off and were no longer designed to be fired from the shoulder.
The key in determining whether a particular weapon fits within this category is whether it came off the assembly line as a rifle or shotgun. If so, and the altered weapon fits the criteria for a weapon made from a rifle or a weapon made from a shotgun, it is a “firearm” as defined in the NFA.
Significantly, these altered weapons may have a configuration similar to that of certain firearms regulated under the “any other weapon” category. For example, a weapon made from a rifle may have the same configuration as H&R Handyguns, a smooth bore shot pistol specifically regulated as an “any other weapon.” Again, the classification depends on the configuration of the weapon when it was originally manufactured. Persons who are unsure how a particular firearm is regulated should contact ATF’s Firearms and Ammunition Technology Division for assistance.
5. Importation
NFA firearms are subject to stringent import controls and may be imported only for the following purposes:
(1) For the official use of a federal, state or local government agency;
(2) For scientific or research purposes; or
(3) For testing or use as a model by a registered manufacturer or for use as a sample by a registered importer or registered dealer.
Notably absent from the import criteria is importation for unrestricted commercial sale. Congress intended strict control of the firearms they considered to be particularly dangerous, and this is reflected in the import controls.
Regulations implementing the import provisions of the NFA require the importer to provide documentation establishing eligibility of the imported firearms for one of the purposes outlined above. In the case of importation for a government agency, ATF requires submission of a purchase order from the purchasing agency along with the Form 6 import application. Short-barrel rifles and short-barrel shotguns sought for importation for scientific or research purposes must be supported by a statement from the importer setting forth the specific type of research to be conducted. The research must be scientific laboratory-type research. ATF may limit the number of firearms that may be imported for scientific or research purposes. Importers seeking to bring in firearms for testing must also provide specific information concerning the type of testing to be conducted. Firearms brought in as sales samples may be limited in number to those ATF believes are reasonably necessary for demonstration.
Short-barrel rifles and short-barrel shotguns imported under the NFA are registered in the National Firearms Registration and Transfer Record when the importer files an ATF Form 2 with the National Firearms Act Branch. Registration records reflect the purpose of importation, and the registration is limited to authorize possession of the firearms only for the purposes identified in the import application. This restriction on the registration prevents imported NFA firearms from being diverted into the commercial market.
6. Removal of a Short-Barrel Weapon from the NFA
Federal firearms licensees and other registrants often ask whether it is possible to remove firearms from the NFA through modification of a firearm or destruction. Short-barrel rifles and short-barrel shotguns are the easiest weapons to remove from the statute, as the barrel is one of the features that makes the weapon subject to the NFA. Removal and discarding the barrel are the easiest ways to remove short-barrel weapons from the statute. It is not sufficient merely to remove the barrel. If the barrel and rest of the parts remain under the custody and control of the same person, that person will be in possession of a firearm subject to the requirements of the NFA. The barrel should either be destroyed or transferred to another person. A barrel of 16 inches or more may then be attached to the rifle, or in the case of a shotgun, a barrel of 18 inches or more may be attached. This will result in both types of firearms being subject only to the Gun Control Act and not the NFA.
Short-barrel rifles and short-barrel shotguns may also be removed from the NFA by permanently attaching a barrel extension. The extension may be a muzzle brake, choke or an additional piece of barrel. ATF requires the barrel extension be permanently affixed by gas or electric steel-seam welding or by using high temperature silver solder having a flow point of 1100 degrees Fahrenheit. If the barrel of a rifle is permanently extended in this manner to 16 inches or more or the barrel of a shotgun permanently extended to 18 inches or more, the modified firearms are no longer subject to the NFA.
It is important that registrants create a record of modification to protect themselves from charges of transferring a registered NFA firearm without ATF approval. The record could consist of photographs of the firearm taken prior to destruction that include a close-up of the markings. Additional photographs could be taken during the destruction process and after destruction. The photos should be printed, and the person who took the photos should mark on the back the date they were taken and the location. The photographer should sign the back of the photos. It may also be useful to create a certificate of destruction specifying the date of destruction and the method used. The certificate should be signed and dated by a person with first-hand knowledge of the destruction.
Following destruction a letter should be sent to ATF’s National Firearms Act Branch notifying the agency that the firearm has been removed from the controls of the statute. The letter should describe the steps taken to remove the firearm from the NFA and the date of modification.
Conclusion
Interest in short-barrel rifles and short-barrel shotguns continues to grow among firearms collectors and enthusiasts. There are many legitimate sporting uses for these firearms, and it is difficult to characterize them as the “gangster-type” weapons Congress was concerned about in 1934. Nonetheless, short-barrel rifles and short-barrel shotguns are “firearms” subject to all provisions of the NFA. Firearm distributors and consumers need to understand the statutory and regulatory controls over these firearms to avoid unintentional violations of the law.
The information contained in this article is for general informational and educational purposes only and is not intended to be construed or used as legal advice or as legal opinion. You should not rely or act on any information contained in this article without first seeking the advice of an attorney. Receipt of this article does not establish an attorney-client relationship.
About the authors
Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC (www.reevesdola.com). For more than 10 years she has dedicated her practice to advising and representing U.S. companies on compliance matters arising under the federal firearms laws and U.S. export controls. Since 2011, Johanna also has served as Executive Director for the FireArms Import/Export Roundtable (F.A.I.R.) Trade Group (http://fairtradegroup.org). In 2016, Johanna was appointed by the U.S. Department of State, Bureau of Political-Military Affairs to serve on the 2016-18 Defense Trade Advisory Group (DTAG).
Teresa Ficaretta is an expert on ATF regulations under the Gun Control Act, the National Firearms Act, the Arms Export Control Act and Federal explosives laws. Before joining Reeves & Dola in 2013, Teresa served as legal counsel to the ATF for 26 years, followed by two years as Deputy Assistant Director in Enforcement Programs and Services. Teresa was elected partner to Reeves & Dola in January 2016.
Both Johanna and Teresa can be reached at 202-683-4200, or at info@reevesdola.com.
This article first appeared in Small Arms Review V21N4 (May 2017) |
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