This whole matter is an outgrowth of a little bit of insanity in Federal law. The issue is that the infamous National Firearms Act of 1934 has some vagueness in one of its definitions. Unlike some later gun control laws, it does not ban anything; all that it does is require registration and extra taxes for certain kinds of firearms. Which kinds? Well, machine guns and explosive devices (which, uh, aren't really firearms), "any other weapon" (which somehow only applies to firearms of unusual designs, like cane guns or umbrella guns), suppressors (which fire nothing at all), and two species of ordinary long guns: short-barreled rifles, and short-barreled shotguns.
It's the rifles that are at issue here. Apparently the Prohibition-era G-men were willing to face the danger of handguns, although bullet proof vests were nowhere near as good back then, but they were unmanned by the threat of facing a short long gun. So, a "rifle" with a barrel under 16 inches (or an overall length sub-26 inches) was regulated by the act; but a "pistol" with a barrel under 16 inches (&c.) is not.
What's the difference between a rifle and a pistol? Um....
It's not the ammunition; long before 1934 it was common for pistols and rifles (or carbines, which are rifles that have short barrels in order to ease handling) to share ammunition. Especially in the Old West the Colt Single Action Army was often rechambered for .44-40 instead of .45 Colt so that it could share ammunition with the Winchester 73. (This was so popular it soon became a factory offering.) Today it is quite common for carbines to be chambered in .357 Magnum or .44 Magnum or .45 Colt; it's not uncommon for AR-pattern pistols/rifles to be chambered in 9mm or .45 ACP.
Is it then a question of whether it is meant to be fired with one hand or two? Or is it just a question of whether it was meant to be a pistol or a rifle in general? For both questions: meant by whom? If the owner/user, the question is then just one of intent, and that has to be proven at trial; you couldn't presumptively regulate anything. Besides, a lot of pistol instructors teach two-handed pistol use as the most accurate and preferred style.
If the intent is the manufacturer's, well, then it's just up to Joe's Gun Smithy to determine if they intended the thing to be a pistol or a rifle. If they say it's a pistol, it is. If they say it's a rifle, it is. It doesn't matter how the user used it; users often don't obey the manufacturer's instructions.
Until recently, the courts have decided to go with the notion that the manufacturer's intent was what decided the question. The ATF decided to substitute their own judgment by simply writing a rule to the effect that manufacturer-designed "pistols" that had a stabilizing brace were to be considered rifles instead (and thus subject to the NFA).
Generally a sufficiently vague law is unconstitutional, at least in the vague aspects. This one looks like judicial review might not go its way.
1 comment:
The whole question could be straightforwardly, if not easily, settled by strict adherence to the text of the 2nd Amendment, which says in so many words that the right to keep and bear arms shall not be infringed.
"Arms" is carefully undefined and deliberately unrestricted, written as the Amendment was, in an environment of a just completed war to escape from an overreaching government that, among other things, sought to disarm the colonists in order to enforce its overreach. That environment also included that war, wherein a significant fraction of the colonial army's artillery was privately owned and variously lent or sold to the army, and a significant fraction of the colonial navy's combat ships were similarly privately owned, and lent or sold to the navy, or (and primarily) privately operated for the benefit of the navy and the colonial enterprise.
Which makes me willing to accept Eric Swalwell's challenge and acquire my own nuclear weapons, and to accept Joe Biden's offer of acquiring my own F-15 (which, by the way, I can actually fly and fight). The only barrier in my way there, under the 2nd Amendment, is not a legal one, but getting the financial wherewithal to obtain them.
(Regarding the introductory phrase about militias, the Supreme Court has ruled many times that phrase is not the purpose for keeping and bearing, but an outcome of individuals being armed and facile with their arms.)
Eric Hines
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