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Old Sawed Off Shotgun

7K views 35 replies 8 participants last post by  TitleIIToyLover 
#1 ·
A friend recently mentioned to me that his grandfather had left behind a sawed off shotgun that he used during his employment with the some federal division. I think he was in wildlife. My friend's father has it now and it does not have a tax stamp.

Is there a legal way to register the gun so that it is legal? Or is their only choice to destroy it?
 
#2 · (Edited)
There is no way to "fix" a contraband gun. If there is NO current paperwork then the gun can not be registered. If fact, the gun may still belong to the federal agency that issued it. NFA 34 has been around since, well, 1934 so I speculate that something strange happened that puts the gun into its current legal status. It would have been an illegal transfer for the agency to just let it walk away as a retirement gift.

If the gun has sentimental value, you could try and find a 18+ inch barrel for it.

Is just the barrel cut or is the stock cut also. You need 26 inches OAL in addition to the 18 inch barrel length.

If the gun has sentimental value and you can't return it to Title I status, get rid of the barrel and just keep the receiver for sentimental purposes...but get the gun into a Title I status as soon as possible.

ETA: Has someone actually measured the gun. "Sawed Off Shotgun" is not a technical term. Sometimes shotguns can be shortened but still remain within the length limits for Title I guns, but just look scary.

ETA: BrianB has a good idea in his post below.
 
#3 · (Edited)
An NFA firearm that has ever been manufactured, transferred, or possessed, in violation of the NFA, immediately and irrevocably becomes contraband and may never lawfully be possessed other than by the government.

Many moons ago a friend was willed a live, functional machinegun that his father captured from an enemy combatant who no longer needed it. It probably could have been amnesty registered during the one and only amnesty that has ever been held, but it wasn't. Fortunately he knew someone who knew someone that was in charge of a military firearms museum (an actual museum owned and run by the military) and he was able to donate the gun to them. They were quite happy to add it to the museum, and of course the military can possess whatever the hell they want.

Assuming that it's not possible that your friend's gun was owned by the agency and is actually registered, all that can be done is destroy or surrender to ATF. But what does "destroy" mean?

I would think that for NFA purposes it is "destroyed" if the barrel is removed and destroyed or sold/disposed to a 3rd party who does not possess a firearm with which it could be used (lest you create a new contraband gun via constructive possession). If the shotgun doesn't have a barrel it is no longer a short barreled shotgun. Then if they could acquire a legal-length barrel for it (via GunParts.com or some place that sells parts for old guns) they could make it a legal Title 1 (non-NFA) firearm again.

Note that I do not believe it would be sufficient to simply weld long tubes onto the existing short barrels. ATF has some funny rules about contraband guns being able to be made un-contraband using all the original parts. If you just weld extensions on the barrel you still possess the complete original contraband firearm, even though you have otherwise made it "legal".

For example it is my recollection that if someone wants to register a Marbles Game Getter as an AOW, and it has never been registered before, which means it was contraband at some point, the serial number of the barrel on the gun can't match the receiver - otherwise you are registering something that is contraband. But if the gun has no barrel, and then is Form 1 registered, and then assembled with a barrel with a non-matching serial number, then that's OK.

Given that, if the desire is to make a legal short barreled shotgun out if it, there might be a path to do so. If you could destroy the gun by destroying the original barrel, then Form 1 register the gun as an SBS, then acquire a replacement barrel and cut it down (or acquire a replacement barrel that is already cut down), that would let you make a legal SBS out of it.

Regarding acquiring a replacement barrel that is already cut down - there is nothing illegal about selling a short barrel to someone. The Benelli 14" barrels are for sale on GunBroker all the time. Of course if one owns a Benelli that the barrel will fit, and said Benelli is not SBS registered, and one acquires the barrel before so-registering, then one constructively possesses an unregistered NFA firearm. But if one does a Form 1 SBS registration and receives the approved form back, then one may acquire said barrel without violating the NFA.

So, if someone else had previously destroyed a contraband shotgun of the same model by selling the barrel to Gun Parts Corp., it's possible they might have one for sale that is already cut down - which of course shouldn't be acquired until after the shotgun has been destroyed by disposing of the original barrel, AND registered as an SBS, after which a different short barrel could be acquired, or a long barrel acquired and cut down.

I would strongly advise against trying to be cute and saying that the original barrel was disposed of, the gun was registered, and then a new barrel put on, when in fact the barrel on there is the original one. Even if there were no serial number on the barrel I would think it would probably be pretty easy to prove it was the original barrel and violating the NFA is a felony.

OK, that got a little long. And it was kind of stream of consciousness so hopefully it isn't too haphazard. None of this is legal advice, etc., but I have a better familiarity with NFA law and practice than most attorneys unless they specialize in it.
 
#6 ·
I think even if you disable the gun it is still contraband - kind of like DEWAT machine guns. I don't think any plan that involves keeping the entire contraband firearm is a good one. Generally speaking ATF requires a receiver to be torch cut into 4 pieces with 1/4" of metal removed by each cut - in order to consider a receiver to be destroyed. That's for machine guns, but if you were going to keep all the pieces it would be just as illegal as an unregistered machine gun.

I don't think even welding all the internals to the receiver or anything else would be sufficient to be considered "destroyed" in ATF's eyes.
 
#5 ·
From what he's told me, I get the impression that this was a personal weapon that the grandfather bought and converted on his own and was not a weapon from the agency he worked for. Thanks for the suggestions about converting it. I'll make that suggestion to my friend.
 
#14 ·
#18 · (Edited)
But, again, the terms sawn-off and sawed-off are slang terms and do not appear in the code.

And, a sawed-off shotgun might be perfectly legal depending on how much was sawed off. It is not illegal to saw off a shotgun unless you saw off too much.

And while we are at it, its not a suppressor, it is a silencer.

Slang is OK unless you are actually trying to discuss the legal aspects of the NFA.

If Miller's attorney would have just shown up for his court case, this all might be moot!!
 
#19 ·
If Miller's attorney would have just shown up for his court case, this all might be moot!!
I'm still kinda pissed at him. Yeah, his client flew the coop, but still...
 
#26 ·
This is one of those situations when the owner of the contraband gun thinks to himself...who will even know?

Years go by and the owner gets complacent and leaves it sitting in a corner in plain sight.

And then he has a kitchen fire and the fire department comes and happens to see it and tells their buddy the deputy sheriff, who now has probably cause...

Its not worth it. I would not be able to sleep at night if I had a bad gun in the house.
 
#27 ·
(Just throwing this out for the sake of discussion)

If the owner legitimately did not know NFA rules, and did not know that the gun was a NFA item, is it really a crime?

Lets be honest with ourselves, unless you are a serious gun person, you probably have NO idea what the NFA is, ir what it applies to.

How many times have you heard from people and the media that silencers and machine guns are illegal for civilians to own?

I seem to recall one of the acid tests for a criminal act is intent.

Much like the old lady that turned in a fully functional, not NFA registered StG-44. By the wording of the NFA, she should have been charged with unlawful possession of a NFA weapon. Instead, they gave it to a museum rather than have it destroyed and she was not charged by the state, nor the federal government.
 
#29 ·
It's good that you bring up Staples, because it is the closest case on point here, but in my opinion you mischaracterized the holding of Staples as it would apply to this case. Staples does not require that one know that the firearm is contraband in order for criminal sanctions to attach. Staples held that in order for a person to be prosecuted for having a contraband firearm the person must know, or reasonably should have known, that the firearm possessed the feature that subjects it to regulation. Whether or not you are aware of the regulation is irrelevant.

So in this case the court would have to determine if the possessor of the shotgun knew, or reasonably should have known, that one or more barrels of the shotgun were shorter than 18 inches in length. If that can be proven then it is irrelevant whether or not the possessor knew such a shotgun was illegal.

Unfortunately mens rea isn't as important as it once was. It used to be that it was almost impossible to be convicted of a crime without it. But now there are so many "strict liability" criminal offenses that one can even be convicted of felonies if the statute does not include the right language to bring mens rea into play.
 
#31 · (Edited)
Thanks Brian.

You are so much better at this stuff than I am, and I will always defer to your opinion.

This is from the opinion of the case and why I used the citation:

In short, we conclude that the background rule of the common law favoring mens rea should govern interpretation of § 5861(d) in this case. Silence does not suggest that Congress dispensed with mens rea for the element of § 5861(d) at issue here. Thus, to obtain a conviction, the Government should have been required to prove that petitioner knew of the features of his AR-15 that brought it within the scope of the Act. [n.17]

I agree that there is a distinction between not knowing that an AR15 has somehow become a machine gun v not realizing that a shotgun has a very short barrel, but it was the best I could do on a Saturday afternoon.

ETA: May I suggest that mens rea (or its close family member) is still an element of many statutes, even F.S. Chapter 790. Eg.:

790.115
(b) A person who willfully and knowingly possesses any electric weapon or device, destructive device, or other weapon as defined in s. 790.001(13), including a razor blade or box cutter, except as authorized in support of school-sanctioned activities, in violation of this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(c)1. A person who willfully and knowingly possesses any firearm in violation of this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s.775.084.

Yes, I know there is a subtle difference, but it may be important someday when helping your lawyer prepare your defense.
 
#34 ·
I'm with you. I too would not be able to sleep at night if I had an illegal gun in the house. You never know when something is going to happen that invites the law into your house. Maybe you're the victim of whatever event that is, but maybe you end up leaving in cuffs at the end of it. Not worth it.
 
#36 ·
The only profession that I know of, that requires that you know all of the regulations is commercial aviation. Title 14 CFR requires, by regulation, an airline captain know all the regulations. To not know know all of the regulations is careless and reckless and is prohibited by regulation.
 
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