Friday, October 19, 2007

"I Inventory the SBR, AOW, DD, & Suppressor at . . ."

The previous posting on this Blog, "I bequeath my machine gun to . . .", garnered such great interest -- both from professionals and from gun enthusiasts -- that Joshua G. Prince wrote a follow-up article, "Grandpop’s Machine Gun in the Chest, Part II", for posting.

Josh is one of the students in my current Elder Law class at Widener University School of Law (Harrisburg Campus). As before, I edited the article for posting here. We hope that you find it useful on this somewhat arcane area that may affect a few estate administrations.

Grandpop’s Machine Gun in the Chest, Part II

As an estate attorney, have you ever made a determination that a cane or pen, in an estate, is not a firearm? Have you ever measured the length of a rifle’s or shotgun’s barrel? What about determining whether a 2 liter bottle is actually a sound reducing device for a firearm, classified as a silencer? After finding a shotgun, have you ever inquired as to whether it is classified as a “destructive device?”

While some may be chuckling, I assure you that your client will not be when faced with up to ten (10) years in prison and two-hundred and fifty thousand dollars in fines.

For purposes of this article, I will deal with Short Barreled Rifles (SBRs), All Other Weapons (AOWs), Suppressors, and Destructive Devices (DDs).

A SBR is defined as a firearm “[H]aving a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length.”[2] To determine the length of a shotgun’s or rifle’s barrel, “[T]he bolt or breechlock of the weapon should be closed, the weapon cocked, and a rod inserted down the barrel through the bore until it contacts the face of the bolt…the rod should then be marked to denote the barrel end, withdrawn from the weapon and measured.”[3]

It continues, “A barrel length so determine which is less than 18 inches in length on a shotgun or less than 16 inches on a rifle, will establish that the weapon comes within the purview of the National Firearms Act.[4] Furthermore, the overall length of a shotgun or rifle is, “[T]he distance between the extreme ends of the weapon measured along a line parallel to the center line of the bore.”[5] It must be noted that a pistol, with a shoulder stock, whether or not attached, may constitute a SBR.[6]

An AOW is defined as, “[A]ny 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.”

Traditionally, AOWs included gadget devices, Nazi belt buckle firearms, and glove firearms.[7] Today, AOWs also include cane, cell phone, crutch, and pen guns, pistols with a vertical/forward grip, and other disguised firearms. Currently, the BATFE asserts that a pistol in a leather wallet holster is an AOW,[8] which is contrary to § 5845(e). However, any device which the Attorney General finds “is primarily a collector’s item and is not likely to be used as a weapon,” exempts that device from the purview of the NFA.[9]

A suppressor/silencer is a device for “[S]ilencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part intended only for use in such assembly or fabrication.”[10] Over the past decade, there have been some interesting devices determined to be suppressors.

In Virginia, a fuel filter, which was modified to thread on the end of a .22 caliber rifle barrel, was a suppressor, because it reduced the noise of the gunshot.[11] Another interesting development is the registration of a thread adapter, which allows one to thread a 2 liter bottle onto a rifle or pistol. The BATFE is currently allowing individuals to register the adapter, but the 2 liter bottle, may constitute a part “[I]n assembling or fabricating a firearm silencer or firearm muffler.”[12]

DD is defined as, “(1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellant charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than one-quarter ounce, (E) mine, or (F) similar device; (2) 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; and (3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subparagraphs (1) and (2) and from which a destructive device may be readily assembled.”[13]

In 1994, the BATFE ruled that non-sporting use shotguns were DDs, and thus, proclaimed the USAS-12, Striker-12, and Streetsweeper shotguns, DDs.
[14] DDs, specifically explosive devices, may be cause for alarm, since the BATFE has prosecuted individuals for having smoke grenades,[15] ground burst projectile simulators,[16] firecrackers,[17] and flashbangs.[18]

However, these should, and in many cases did, fall under the exception of “any device which is neither designed nor redesigned for use as a weapon.”
[19] As Mr. Halbrook States, “There are numerous ordinary household products which, if assembled or intended to be assembled, may be destructive devices. While gasoline, bottles, and rags all may be legally possessed, their combination into the type of home-made incendiary bomb commonly known as a Molotov cocktail creates a destructive device.”[20]

As is readily apparent, the issues of
SBRs, AOWs, Suppressors, and DDs, in estates, are cause for concern, for any attorney. Surely, very few, if any, estate attorneys check a cane or pen of the decedent, but such could constitute malpractice, and one’s client being imprisoned and fined.

My grandfather, an 88 year old attorney, stated, "I have never come across any machineguns or NFA weapons in an estate."

This would be true if you are not sufficiently aware to look for them.


[1] 26 U.S.C.S. §§ 5861(d),(j); 26 U.S.C.S. § 5872; 49 U.S.C.S. §§ 781-788.

[2] 26 U.S.C.S. § 5845 (a). Furthermore, § 5845(c) states: “The term rifle 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 cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed cartridge.”

[3] Rev. Rul. 67-424, C.B. 1967-2, 464.

[4] Id.

[5] 27 C.F.R. § 179.11 (“firearm”).

[6] See U.S. v. Zeidman, 444 F.2d 1051, 1052 (7th Cir. 1971); but, see U.S. v. Thompson/Center Arms Co., 504 U.S. 505 (1992). However, the BATFE stated that certain pistols, with shoulder stocks, were removed from the NFA. Letter from C. Michael Hoffman, Assistant Director (technical and Scientific Services), BATF, May 29, 1981, T:T:F:CHB, 7540, reproduced by Stephen Halbrook, Firearms Law Deskbook, 451-52 (Thomson/West 2007).

[7] Bryan v. U.S., 373 F.2d 403, 406 n.4, 67-1 U.S. Tax Cas. (CCH) P 15742 (5th Cir. 1967), quoting 26 C.F.R. § 179.35 (now repealed).

[8] Stephen Halbrook, Firearms Law Deskbook, 458 (Thomson/West 2007).

[9] § 5845(a); While this section refers to the Secretary (of the Treasury), this was changed by the Homeland Security Act, which transferred the BATFE from the Department of the Treasury to the Department of Justice.

[10] § 5845(a)(7).

[11] Gray v. Com., 30 Va. App. 725, 729 (1999), judgment aff’d, 260 Va. 675, 678 (2000).

[12] § 5845(a)(7). This poses an interesting problem of whether individuals need to register their soda bottles, or risk violating the NFA.

[13] § 5845(a)(8)

[14] ATF Rul. 94-1 and 94-2, ATFB 1993-94, 21-26.

[15] U.S. v. Homa, 608 F.2d 407, 209 (10th Cir. 1979).

[16] U.S. v. Dalpiaz, 527 F.2d 548, 551 (6th Cir. 1975).

[17] U.S. v. Worstine, 808 F. Supp. 663, 664 (N.D. Ind. 1992).

[18] Stephen Halbrook, Firearms Law Deskbook, 471 (Thomson/West 2007).

[19] § 5845(a)(8)

[20] Stephen Halbrook, Firearms Law Deskbook, 472 (Thomson/West 2007).

Update: 06/27/08:

See: "Right to Keep and Bear Arms: Part I", posted on this Blog.