Friday, August 4, 2017

Mossberg Shockwave Illegal in Nevada?

Courtesy of Mossberg
This is a revised and updated version.

The Nevada Firearms Coalition shared a warning stating that the Mossberg Shockwave, a pistol-type shotgun with a 14 inch barrel, might be illegal under state law. The matter is undermined at this time, but as examples from other states have shown, it will likely be found to be legal. 

This whole area of law is a mess. The Shockwave is taking advantage of an actual loophole in federal law. Short version, law enforcement may treat it as illegal at least for now. Make your dispositions accordingly.

But let’s delve a little deeper. How is this legal federally? It’s more than just a letter from the ATF.

18 USC 921 (the Gun Control Act) is where we start. As far as shotguns go (emphasis added): 
“(5) The term ‘shotgun’ 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 an explosive to fire through a smooth bore either a number of ball shot or a single projectile for each single pull of the trigger.
 “(6) The term ‘short-barreled shotgun’ means a shotgun having one or more barrels less than eighteen inches in length and any weapon made from a shotgun (whether by alteration, modification or otherwise) if such a weapon as modified has an overall length of less than twenty-six inches.” 
Note that (6)’s reference to a shotgun draws directly from (5)’s definition. Key are the words "intended to be fired from the shoulder,” which the Shockwave is not.

The National Firearms Act included short barreled rifles and shotguns as it originally sought to ban pistols and other easily concealable firearms. It was understood that if pistols and revolvers were illegal, long guns would be quickly cut down. The NFA (18 USC 5845) defines prohibited shotguns thusly: 
"The term 'firearm' means (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length;" 
(1)'s definition of a shotgun comes from 921(c)(5), the key words being "intended to be fired from the shoulder," which the Shockwave is not. Under (2), the weapon's overall length exceeds 26 inches (26.37 inches, per the manufacturer), making the under 18 inch barrel legal. The Shockwave is made new, not from a shotgun (meaning not sawed-off).

921 defines a firearm as we understand the word: an explosion (gunpowder) makes a projectile fly. "The term 'firearm' means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive." So, because the Shockwave doesn't fall under any category neatly, it becomes a "Firearm" with a capitol "F" as there is no other term to call it.

So that’s how it’s legal under federal law. Let’s look at Nevada law. Per NRS 202.275:
“(b) ‘Short-barreled shotgun’ means:
(1) A shotgun having one or more barrels less than 18 inches in length; or
(2) Any weapon made from a shotgun, whether by alteration, modification or other means, with an overall length of less than 26 inches.”
Nevada law works differently. First, a shotgun is a "short-barreled shotgun" if the barrel is less than 18 inches (which is true for the Shockwave), or if someone cuts down a shotgun to be less than 26 inches overall. There is an exemption if you have a tax stamp from the ATF.

Now for the interesting kicker that I believe is ultimately in our favor: Nevada law does not define what a shotgun is. In looking for an actual definition, courts would likely have to default to federal law, which as we saw, does not define the Shockwave as a shotgun. Remember, a “shotgun” has to be intended to be fired from the shoulder; the Shockwave is intended to be fired off-hand.

The origin of the legislation is important as well. Short-barreled shotguns were outlawed under state law in 1977 by AB 459 because the ATF and US Attorney didn't have time to prosecute violations under federal law. The intention was not to go beyond federal law and the proposed law (now NRS 202.275) was "very close to federal law.” One could gather from that the intention was to simply duplicate federal law, not to create a new definition, so the federal loophole would apply to Nevada as well.

As far as the tax stamp exemption, the ATF would probably not grant a tax stamp because the Shockwave does not qualify as an NFA weapon. Just like the FBI wasn’t going to do private sale background checks for free, I doubt the helplessly overwhelmed NFA Branch is going to process tax stamps just for all six Nevadan’s that buy this range toy. Without a tax stamp, you can’t buy the gun. Without a tax stamp, you’re not exempt. That creates a contradiction, as the fed’s won’t do something Nevada is trying to require. Thus, you cannot be legally exempted in order to own this weapon in Nevada.

In a logical world, Nevada authorities draw from the federal definition and rely on the ATF’s clarification the weapon is illegal. Definitions are a big deal in court and to our benefit, the legislators left “shotgun” undefined under state law. It’s not like pornography where a you can’t define a shotgun, but you know it when you see it. Sorry, court doesn’t work that way (but broken judges do, unfortunately). So, again, in a logical world the federal definition wins out and I’m right, but that a nickel will leave me with a nickel.

As the Attorney General’s office said regarding Question 1, the law cannot create impossibilities. I’d suspect that we’d win any legal battles on this one, but who wants to be the test case? I’d like to believe this was just an error by the Sheriffs’ and Chiefs’ Association, but it smacks of a political, anti-gun (specifically anti-scary gun) agenda. They must have a lawyer to look these things over.

It’s up to the Attorney General to help answer the question or at least get law enforcement to agree Nevada law is ambiguously in favor of the Shockwave being legal and that if the ATF is cool with it, Nevada should be too. Anyhow, there is no logical reason this gun or any short barreled gun should be regulated as an NFA item. This is a perfect example of why states have no business passing NFA-type laws. We’ll see this issue again with silencers if the Hearing Protection Act passes into law.

Should we at least honor the spirit of the law? No. Again, a short shotgun is not any functionally different than a handgun and was originally banned federally in 1934 for political reasons. Watch Karl and Ian demonstrate how ineffective this type of weapon really is. So loophole or not, the purpose behind the law is an empty one. Legislators also have an obligation to pass laws that make sense; by not defining a shotgun, they either meant the federal definition or made an amateur mistake. If a government is going to prohibit something, if it can't be morally correct all the time, it must be legally correct 100% of the time.



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