Felony by Fiat: The Absurd and Arbitrary Regulation of Short-Barreled Firearms in the U.S.

Under the National Firearms Act (NFA), you can be imprisoned for owning an otherwise legal rifle or shotgun if it has a short barrel. Government agents might even kill you — you certainly wouldn’t be the first person killed in the course of enforcing restrictions on short-barreled firearms. And the worst part? You could suddenly and unintentionally find yourself in felonious possession of such a restricted weapon — even if you haven’t broken any laws. Through regulatory magic, the decisions of federal bureaucrats can “transform” an unremarkable firearm that you already legally acquired and possess into a firearm that’s illegal under the NFA, without any actual legislative changes taking place.

Restrictions on short-barreled firearms curb the exercise of the fundamental and constitutionally protected right to bear arms. Yet, these laws lack any plausible pretext of public safety value. Even worse, peaceful and law-abiding citizens can easily run afoul of these laws through no fault of their own.

The National Firearms Act makes rifles and shotguns with barrel lengths of less than 16 and 18 inches, respectively, presumptively illegal to possess. Pistols are not subject to this minimum barrel length requirement. The NFA’s restrictions on short-barreled rifles and shotguns should be understood in light of the NFA’s legislative history: it was originally intended to target all small firearms, including pistols. Minimum barrel length requirements for shotguns and rifles would have been a natural accompaniment to pistol restriction, or else that restriction could simply be circumvented with “small rifles.”

However, when the pistol restrictions were dropped from the NFA bill in order to garner sufficient support for its passage, the minimum barrel length requirements for rifles and shotguns remained. In this sense, the NFA’s barrel length restrictions are a peculiar legislative vestige — they’re intended to stop an end-run around a law that never actually existed.

Other dimensions (not just barrel length) also matter. For example, possession of a shotgun of less than 26 inches in overall length, regardless of its barrel length, is also restricted under the NFA. For the sake of concision and to avoid excessive technicality, I’ll be focusing primarily on short-barreled firearms, but it is good to keep in mind that barrel length is not the only relevant dimension in this conversation.

To Own a Short-Barreled Firearm

The processes by which an individual may legally acquire and possess a short-barreled firearm are intimidating, intrusive, lengthy, onerous, and expensive. In addition to the background check that’s also associated with any other firearm purchased from a dealer, purchasing or making a short-barreled firearm requires the submission of fingerprints, photographs, registration paperwork, and the payment of a $200 tax. The ATF will take months — or even a year — to approve the forms. And this process doesn’t confer some sort of license —it’s merely a registration of that specific firearm. The process must be repeated for each short-barreled firearm individually.

Why would anyone bother with all that just to legally acquire a rifle or shotgun with a short barrel? Short-barreled firearms have some distinct advantages over their larger counterparts, such as light weight and ease of handling in confined spaces. Generally speaking, rifles are much more capable (in terms of power, accuracy, ability to mount accessories, etc.) and much easier to use effectively than are handguns. However, those benefits can be negated by the length and weight of a full-size rifle. In fact, for people with certain physical limitations or disabilities, a short-barreled rifle may simply be the only viable rifle option.

Now, suppose you’ve jumped through all of the hoops necessary to legally possess a short-barreled firearm. After all, as long as you have no criminal record, plenty of time and money, knowledge of the ever-changing interpretations of an octogenarian law, and the willingness to part with a good measure of your privacy, you certainly can do it — though, it is worth considering how such hurdles disproportionately infringe on the Second Amendment rights of the less affluent and those who, with good reason, may have less trust in our governing institutions.

However, even after completing the process, you will still be subject to special restrictions which could easily ensnare people who have no malicious intentions. For example, you cannot transport that firearm across state lines without receiving permission from the ATF to do so. If you live near state boundaries, you could easily find yourself a single missed freeway exit away from committing a life-ruining felony. (As a gun owner and former northern Virginia resident who frequently crossed into DC and Maryland, I can attest that this is a very real concern.) And no matter where you take your firearm, you need to be prepared for a “papers, please” instruction: your proof of registration “must be made available upon request of any ATF officer.” NFA rules also complicate the process of lending, giving, or selling your short-barreled firearm to someone else. In this sense, it’s hard to say that you even fully own that firearm — the ATF has a great deal to say about what you may do with it.

At this point, it’s worth momentarily reflecting on the fact that all of the aforementioned rules apply to the possession of a Remington 870 shotgun with a 17.5 inch barrel, whereas none of those rules apply to the possession of a Remington 870 with an 18 inch barrel, the latter of which you can acquire, with a simple background check, in virtually any store that sells firearms. These laws are truly ridiculous.

Accidental Felonies

But, even if you do everything by book and consistently follow the letter of the law, however silly it may be, you’re still not in the clear.

The most insidious aspect of the restrictions governing short-barreled firearms is that they have been known to suddenly change with the whims of federal regulators. To an extent that few people appreciate, federal gun policy is not only enforced, but also dictated by the ATF. New policy comes about not through the passage of legislation, but simply through the decisions of agency officials.

This is most easily observed with respect to the ATF’s changing positions on pistols equipped with stabilizing braces. In 2015, the ATF decided that the physical action of holding a pistol equipped with an ATF-approved brace to one’s shoulder was equivalent to creating an illegal short-barreled firearm. That is to say, you could pick up your perfectly legal pistol (which is not otherwise subject to the NFA’s minimum barrel length restrictions) and unwittingly commit a felony by virtue of the way you held it. That guidance directly contradicted a 2014 ATF letter that said just the opposite. In 2017, new guidance was issued which appears to sanction the shouldering of a braced pistol so long as such use is “incidental, sporadic, or situational” — whatever that means.

You can also run afoul of the ATF’s rules without even touching your otherwise legally-possessed firearm. Just last year, the ATF issued new measurement guidelines that transformed some conventionally legal pistols into presumptively illegal firearms under the NFA’s “any other weapon” (AOW) classification, depending on how those pistols had been configured and accessorized. Firearms that Americans purchased and held legally suddenly became felonious to possess despite that fact that no laws per se were changed.

The problems with these rule changes are compounded by three factors. First, as mentioned above, such changes are not the deliberative product of openly debated legislation, but simply the dictates of agency officials.

Second, the rule changes are often buried in letters responding to particular inquiries rather than being announced and discussed publicly. It is entirely unreasonable to expect ordinary people to keep up with policy changes that occur in that manner.

Finally, violating these policies — perhaps “finding oneself in violation of these policies” would be more apt — is a felony, just as if the policies in question were real laws. The manner in which the policies are created and disseminated does nothing to diminish the consequences associated with violating them. And yet, there is actually significant debate over the legitimacy of regarding policy so created as real and binding law. Holding Americans criminally liable for violating “policy” created by correspondence is, at the very least, a highly suspect practice.

But What About Public Safety?

I’ve discussed, at some length, the laughable absurdity of the United States’ restrictions on short-barreled firearms. Presumably, these policies are enforced in the name of public safety, so let’s look at the other side of the equation: Is there any public safety value in these restrictions?

There is not.

For starters, the premise that criminals are more dangerous when armed with SBRs* compared to rifles with longer barrels is debatable. Some of the desirable qualities of SBRs are discussed above. However, such advantages are counterbalanced by other factors. All else being equal, projectiles fired from SBRs have less energy than those fired from longer-barreled rifles. A shorter barrel often comes with a shorter sight radius, which makes the weapon harder to aim effectively, in the absence of an optic. SBRs also suffer from greater muzzle blast, flash, and recoil, all of which can make an SBR more difficult to use effectively relative to its full-size counterpart. Compared to rifles with shorter barrels, SBRs are not categorically more capable. The relative capabilities of the two weapons depend largely on context.

Moreover, shotguns and rifles of any sort are rarely used in homicides, despite the fact that even short-barreled rifles and shotguns are very easy to acquire or make if you don’t care about breaking laws (discussed below). Attempting to curb homicide by restricting rifles and shotguns is invariably a fool’s errand, and that’s doubly true for subsets of either type of firearm.

But let’s forget all that and simply suppose that SBRs are “more deadly” than longer weapons: Does restricting short-barreled firearms actually prevent criminals from acquiring them?

No, not at all. There are many ways of easily and effectively shortening an otherwise legal rifle or shotgun. For example, it takes no mechanical skill or tools to replace the upper receiver of a perfectly legal AR rifle with the upper receiver taken from a perfectly legal AR pistol, thereby creating a short-barreled rifle. Sure, it’s a felony to do so, but I think it’s safe to say anyone who’s willing to murder innocent people is not concerned about violating National Firearms Act statutes.

Aside from swapping components to create short-barreled firearms, longer barrels may simply be cut with commonly available tools: criminalizing the possession of “sawed-off shotguns” does nothing to complicate the simple act of lopping off a few inches of barrel with a saw.

And shortening a rifle isn’t the only way to create a short-barreled rifle: one could also add a stock to a pistol, which, legally speaking, would constitute the construction of a short-barreled rifle. For some combinations of pistols and stocks, this would also be an extremely easy task, requiring little or no mechanical ability. Configuring a firearm as such without the ATF’s approval would be a felony, but, again, it’s unlikely that murderers are interested in the ATF’s technical — and somewhat fluid — definitions of “short barreled rifle” or “any other weapon.”

The existing regulatory regime does nothing to prevent criminals from acquiring or making short-barreled firearms. It’s all for nothing: a burden upon and a liability to only those people who are interested in complying with the law, not the malicious actors who actually threaten public safety.

An Unjustified Infringement

Perhaps you believe that our constitutional rights are not absolute. Even if that’s the case, certainly you also believe that any restrictions or limitations placed upon constitutional rights require some sort of justification — or else you simply believe in a government of unlimited and arbitrary power, wholly unbounded by the Constitution. I’ll assume you don’t.

Where, then, is the justification for the way our government restricts the possession of short-barreled rifles and shotguns? The case to be made in the name of public safety is worse than flimsy — it’s simply nonexistent.

But while there’s no such justification, we see that, on the other side of the ledger, this regime of restriction does have a real cost. It is an imposition upon our natural and constitutionally-protected liberties. The regime makes the exercise of those liberties costly and exclusive. We should look with great skepticism upon policies that restrict the enjoyment of our liberties to the elite and the privileged.

Moreover, the restrictive regime makes even the lawful exercise of our liberty nonetheless legally perilous. No peaceful person should have to worry about accidentally committing a felony on account of nonsensical policies that have sprung up around her, without debate, announcement, or adherence to legitimate and constitutionally-enshrined lawmaking processes.

It is past time to reexamine the National Firearms Act, its restrictions on short-barreled firearms, and the ATF’s rulemaking by fiat.

*Here I use the the term “SBR” (short-barreled rifle) for brevity; similar logic would apply with respect to short-barreled shotguns.

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