Quoted: Re firing from the shoulder, the law refers to firearms "intended to be fired from the shoulder". Hmmmm.... did you build this firearm with the intent of firing from the shoulder, or did you just happen to try it that way (after painfully bloodying your nose and busting your balls)??? Food for thought.
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Unfortunately, "just happening to try it that way" doesn't hold up in court very well.
Imagine that you work in your gun store, and you have an UZI carbine on the rack. You also happen to have an UZI pistol in the case, together with a spare barrel.
Two guys come in and look at the carbine. One guy asks you if the spare barrel in the case will fit the carbine to which you reply, "sure" and proceed to demonstrate the wonders of the UZI quick-change barrel design by swapping out the 16" barrel for the 7" and back again. They thank you for your time, and you put the barrel back in the case and the carbine on the rack. The next day the guys come back for the carbine -- not to buy it but as evidence when they arrest you for violation of 26 USC 5801, et seq. It seems that you are charged with possession of an unregistered SBR in your shop.
Sound far-fetched? Think you'll beat the rap?
Answer: "no" on both counts.
The issue comes down to
how to prove "intent."There are a myriad of law school textbook ways to prove intent. The easiest, and the one that would apply to a charge of possessing an unregistered SBR in that the firearm was "intended to be fired from the shoulder" is that there was evidence that the weapon
was in fact "fired from the shoulder."
Look at the court's opinion in
US v. Kent, where they discuss
US v. Owens (the actual UZI scenario, above). Kent was charged (and convicted) with possession of an unregistered SBR because they found a short-barreled upper in the same small apartment as his AR rifle. In discussing whether this was "constructive" possession (which many people equate to "intent to posses") even though there was never any evidence that Kent assembled the SB upper onto his AR lower, the court distinguished the
Owens case because Owens
did actually assemble a short barrel into an UZI carbine in front of witnesses (undercover ATF agents, actually). The court concluded that, compared to Kent, Owens was an "open and shut" case - no need to prove "constructive" possession when you have "actual" possession.
The parallels to the AR pistol would be that the pistol remains a pistol. But, pick that sucker up, place the carbine-length buffer tube against your shoulder and fire it (in front of witnesses) and there is no difficulty in proving possession of an unregistered SBR firearm intended to be fired from the shoulder. As in Owens, no need to prove "intent" to fire from the shoulder when you have "actual" firing from the shoulder.
Point of clarification: I am operating under the premise that placing the buffer tube against the shoulder would allow a rifle-like stance and realistic method of firing -- not merely placing the rear of the pistol against the shoulder for academic reasons, sake of argument, "Look, I can also hold it upside-down!"-type shooting. Thus, I am really addressing AR carbine-length recoil tubes on AR pistols, and not some idiot with the 7mm-08 TC Contender.
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As for laws regarding how a weapon is fired:
A pistol is defined in 18 USC 921 and in 27 CFR 479.11 as a "weapon originally designed, made, and intended to fire a projectile (bullet) from one or more barrels
when held in one hand..." (Emphasis added)
Note that it differs from the NFA rifle definition in that a rifle can be "made or
remade, designed or
redesigned" to be fired from the shoulder.
What's to stop a prosecutor from arguing that an AR pistol was "redesigned" from its original design of being fired in one hand when it was placed against the shoulder for firing like a rifle?
Answer: nothing.
Will it result in a conviction?
Answer: I have no idea.
Will the defense costs be more than the $200 tax stamp for an SBR, since that is clearly what the AR pistol owner wanted anyway, when he starts shooting his AR pistol like an SBR by firing it from the shoulder?
Answer: Without a doubt, many time more.
The National Firearms Act defines items by their
form as well as their
function.
Form: "having a barrel or barrels of less than 16 inches in length"
Function: "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"
I would argue that the proposition that a "buffer tube" is not, and by implication, can never be a "stock" is focusing too much on the form and the description of the items in a schematic or parts list, instead of examining the function the buffer tube is fulfilling when it is placed against the shoulder for firing.
The NFA definition for a "rifle" does not say "a weapon that has a stock", but instead defines a rifle by function, "a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder". . .
If you take the position that the buffer tube is not functioning as a stock when it is placed against the shoulder for firing, what is it doing? How does its FUNCTION differ from the "stock" that could be placed on the same buffer tube? Only the diameter of the "tube" distinguishes it from a "stock, and the only difference would be shooter comfort. Again the NFA does not reference "a weapon that is intended to be fired comfortably from the shoulder".
Food for though, indeed.
Cheers, Otto
Edited becasue I can't spel