TTAG reader Armchair Command’oh writes:
In its letter to X-Products, the ATF claims that when affixed to an AR lower, the can cannon must be registered under the NFA. Their argument: the definition of an NFA firearm includes “short-barreled shotguns,” which is a shotgun with a barrel under 18″ of length. Problem. In their letter, the ATF pulls the definition of shotgun from the GCA, not the NFA. And this bit of interpretive legerdemain makes all the difference in the world . . .
Every lawyer knows that different legislative acts can have different definitions for the same word. For example, a “GCA firearm” is more like the common definition of a firearm, where an “NFA firearm” is limited to the fun stuff like machine guns and silencers. As with “firearm,” the GCA and NFA both have their own definition for “shotguns.” Under the GCA, a shotgun is defined as stated in the ATF’s letter. “Shotgun” under the NFA, however, is defined as follows:
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 the explosive in a fixed shotgun shell to fire through a smooth bore either a number of projectiles (ball shot) or a single projectile for each pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed shotgun shell. (26 U.S.C. § 5845(d))
This “fixed shotgun shell” language is echoed in the ATF’s own regulations (see 27 C.F.R. § 478.11). Also, this same language is in the definition of an AOW (see 26 U.S.C. § 5845(e)). The “fixed shotgun shell” language is not, however, in the GCA definition (see 18 U.S.C. § 921(a)(5)).
Here, the “fixed shotgun shell” language is critical. The Can Cannon was “designed . . . made . . . and intended” to use a .223 blank and a separate projectile, not a fixed shotgun shell. Therefore, a Can Cannon attached to an AR would not be a shotgun (and thus not a short-barreled shotgun), nor an AOW, under the NFA. It may, however, still be a “GCA short-barreled shotgun,” but the GCA doesn’t require registration and tax stamps (that’s the NFA). Rather, the GCA does things like make it unlawful for:
[A]ny licensed dealer . . . to sell or deliver . . . to any person any destructive device, machine gun (as defined in section 5845 of the Internal Revenue Code of 1986), short-barreled shotgun, or short-barreled rifle, except as specifically authorized by the Attorney General consistent with public safety and necessity. (See 26 U.S.C. § 922(b)(4) (notice how for machine gun, the GCA refers to the NFA definition, but it doesn’t do that for shotgun))
Because the Can Cannon is sold without a receiver, however, § 922(b)(4) wouldn’t apply. Indeed, the buyer of a Can Cannon is not purchasing a “GCA short-barred shotgun;” rather, the buyer is making one by attaching the Can Cannon to a receiver, and I’m not aware of any federal law prohibiting the making of a GCA (as opposed to an NFA) short-barreled shotgun.
The Can Cannon is not, however, completely out of the woods yet. There is the “readily restored” language in the definition of an NFA shotgun. According to the TTAG review of the Can Cannon, the device will not chamber a live round. The ATF’s letter, however, says that it will chamber a live round, leaving us to wonder how much effort it took to remove that safety feature (i.e. was it “readily restored” to be able to chamber the .223 cartridge?).
Even if it could be readily converted to chamber a live .223 cartridge, however, such a cartridge is not a “fixed shotgun shell.” Rather, it is a ” fixed metallic cartridge,” which is not the same thing (see 27 C.F.R. § 478.11 for the definitions of rifle and shotgun). Finally, ammunition nomenclature aside, this problem could easily be fixed by just making it harder to chamber a live round.
So in the end, it looks to me like the ATF tried to pull a fast one by mixing up the definitions from different statutes, even though they know that the GCA and NFA are not the same thing. Does this mean that you should ignore the AFT’s letter? Definitely not—I am just a guy on the internet and they can make your life a living hell regardless of the law. But I do hope that X-Products will fight this and prevent the ATF from pulling this sort of nonsense yet again (see Sig Brace).