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).

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42 Responses to There’s a major flaw in the legal reasoning behind the ATF’s recent Can Cannon letter, and I doubt that it was accidental . . .

    • I would certainly think so. And that’s the battle that needs to be fought: to get the BATF (and all government) to stick to the law as written, not as they’d like it to be.

    • If it had to do with sex — it would have been ruled unconstitutionally void for vagueness ages ago. But its about a gun, I mean a rifle, I mean, no a shotgun, no wait a pistol …. But maybe there’s hope on the vagueness argument yet …. for those who know the reference:

      “This is my rifle. This is my gun. This one’s for fighting. This one’s for …”

      • “…having fun. And by ‘fun’ I mean shooting cans into the air and either watching them fall, hit stuff, or be shot at by actual firarms.”

        Kind of a long quote, but I believe that’s how it goes.

  1. And would creation of this item with a barrel 18 1/2″ in length cause the ‘problem’ to go away?
    A little voice says “I doubt it.”

    • I doubt a legal 18.5 inch barrel alone would cause them to change their filling they’d probably just turn around and say its a shotgun with no sporting purposes, see amsel striker 12

  2. The important question is how this ruling can be used to advance the anti-gun agenda? After Obama’s promise to use any regulatory means possible to increase gun control, I’m not willing to write this off as simple beureaucratic incompetence.

    Is it as simple as testing the ability to conflate definitions as shown? Is there more applicability than that?

  3. I just read that the “shoot through” wallet holsters for micro .380’s are considered “any other weapons” by the ATF and require the $5 stamp and registration. The info was dated 2009 and I was incredulous (not that I have or want one of these, just the idiocy of the classification) and I wondered if this was true or was later de-bunked? But it’s about the same level as the can cannon issue in this article, so it may be true.

    • I used to have one of those “shoot through the wallet” sorts of holsters for a P3AT… until I tried to take it to the range to try out. The guys behind the counter said, “No way, Jose!” on AOW grounds. They would not let me shoot it in their lanes and made me take the gun out of the holster. I handed the holster over and said, “Drop it in the trash then.” I mutter under my breath, and/or to my gun show buddy, “Those things are illegal!” every time I pass the table selling them now. I don’t have the balls to confront the sellers though just in case I/those-guys-at-the-range am/are wrong. Caveat emptor… or is it Carpe canis? I can never remember.

  4. I think it’s important to realize that there are 2 can launcher designs out there (I didn’t at first and assumed this was another variant on the previous design I’d seen). The X-Products launcher replaces the actual barrel (which I didn’t realize at first until I read the determination letter) and is sold as an upper so their part actually does chamber the cartridge. This then all makes sense in terms of the references to it not preventing the chambering an actual .223 cartridge.

    From the letter “However, please be aware, due to the presence of an approximately 1.05″ smooth bore barrel” and the references to gas tubes and blocks (which it doesn’t have); duh, I thought it replaced the flash hider and couldn’t figure out what 1.05″ they were talking about. I thought for a second they were talking about the length of the mounting flange or something like that which led me to think that “Why isn’t every flash hider an ‘unrifled barrel’?”.

    It would seem that this is a more efficient design as opposed to the ones that replace the flash hider but it might doom this design. The letter doesn’t ban the flash hider models (though it does nothing to make them explicitly legal either as it very explicitly calls out).

    The multiple references to different acts is a real pain and will probably lead to some other “clarification” to try and shut this down through a slightly different angle but it’s worth calling them out on their inconsistencies.

    I’m probably not the only person that jumped to this conclusion but it’s important to understand how the X-Products launcher is different and the ATF’s basis; it’s a twisted mess but not totally crazy either…

    But then I just play a lawyer on TV.

    • Tried to edit the response but it seems to not have worked.

      It isn’t “doomed” (poor choice of words) but requires a redesign to prevent chambering a non-blank round.

      This is exactly what X-products seems to be telling their customers so good on them.

      This seems to revolve around the 1.05″ “barrel” that is really just a stub off of the chamber into the can holding portion – this is the “unrifled” part.

      I was initially confused thinking the ATF was considering the 11″ can holding part the “barrel” but that isn’t the case.

      • If this short section is the BS they are hanging their hat on, just take your Can Cannon and run a common tap down the “barrel” and spike and weld the tube. Then the ATF can go screw itself….have a Coke and a smile!

  5. Since the projectile launched is greater than .500″ diameter, wouldn’t the correct classification become a “Destructive Device?”

    • I made that same ‘DD’ observation when I first heard about this crap ‘decision’ from the ‘BATFuckups’.

    • Under both the NFA and the GCA, the 1/2+” bore category for destructive devices only applies to “weapons.” The Can Cannon is just a toy.

      • I’ve come up with half a dozen ways to use this in ways that weren’t intended. With the exception of Clock Boy people can be rather inventive, for good or not so good.

    • DD is closer to being correct. ATF has the authority to determine which ammunition qualifies as a DD. Generally speaking, if it explodes, it’s a DD. If the ammo doesn’t explode, then it’s not a DD. But if the launch tube of the firearm has a bore over .500″ diameter, whether rifled or not, then ATF, on their own whim, gets to decide if it qualifies as a DD, AOW, or SBS (not SBR). This is why a 12 gauge Saiga shotgun is a shotgun, while a 12 gauge Striker 12 is a DD (whim). It’s also why the gargantuan Taurus 28 gauge revolver (with rifled bore) was denied handgun status (even though Taurus was working on a companion pistol cartridge for it), while the 577 T-Rex qualifies as a rifle. Another ATF whim, most likely based on their perception of the true purpose of the firearm. Killing T-Rex’s okay; killing neanderthals, not okay.

  6. This is the same ATF that kept testing a malfunctioning AR with different loads and ammo until they got it to fire more than once on a single trigger pull then put an innocent man in prison for it.
    And they withheld the testing data from the defense.
    So sure, the ATF is always looking for more ways to put innocent people in jail by simply changing the rules even though they have no such authority and the courts do nothing to stop them.

  7. I tested the can cannon, and to be honest, i just assumed it wouldnt chamber a full round, i never actually tried to put a real one in because of the catastrophic effect if you actually did fire a live round.

    That tube is not a barrel. In fact, because of all the perforations, if it were actually a machine gun barrel from a parts kit, even though those cant be imported, this would be allowed to be imported because its basically demilled.

    I cant wrap my mind around how they decided to classify this.

  8. It also weirds me out that in their letter, the ATF fails to specify if it considers a can cannon on a rifle receiver an SBR or SBS, it just says “firearm” under NFA. I didnt know that Firearms needed registration under NFA. So do i pay the $200 to register a “firearm” (they wont take the form) or do i pay for an SBR or SBS registration?

  9. Correct me if I am wrong, but isn’t the Can Cannon technically a muzzleloader? If so, aren’t all muzzleloaders considered antiques and thus not even able to be called firearms?

  10. And would this ruling affect the legality of the Cobray type 37mm flare launchers that are used to make ersatz M203s?

    The simplest solution would be to place a block at the end of the chamber that would allow a crimped blank but not a proper cartridge, and still allow gas from the blank to pass through.

  11. “I am just a guy on the internet and they can make your life a living hell regardless of the law.”

    That’s why they call them ‘bureaucrats’.

  12. The ATF is a Jack Booted Nazi like agency of the Federal Government. It should be abolished, just as the IRS and the EPA should be abolished. They all share the same unsavory characteristics. Will these agencies ever go away ? Not in a thousand years. Our constitution is treated the same as toilet paper today. Its used to wipe the asses of corrupt men like Barack Obama, several members of the Supreme Court, and of course the many 3 lettered agencies that use Himmler’s handbook as their guide for dealing with American citizens. Our federal government, our educational institutions, the press, and many states and local governments have been infiltrated by Communists. As we were winning the Cold war, the reds have been hard at work getting their comrads elected to public office, in school boards, as governors, sheriffs, heads of major corporations, and the presidency. Our children are being brainwashed by Communists. The Democratic National Committee is an extension of the Communist Party, and many members of Congress are Communists. And if history is the best teacher, then we can expect an all out assault on our right to bear arms unlike any other before it. Expect such as assault before our Communist Imposter president Obama leaves office, and if another Communist is elected in 2016. Our country has changed, seemingly overnight. But it has been subverted hour by hour, over the past 50 years. Everything was in place by 2008, and Obama was the prize. Liberalism is more than a mental disorder. Instead, it is an innocent name for Communism.

    My bet is that someone in the ATF thought the soda can launcher could be used to launch exploding pineapples, not shaken up diet cola. Perhaps they are getting nervous.

  13. So by the same logic, potato guns that many people build for fun are also NFA items I suppose? They are smooth bored devices that fire a projectile.They dont use a fixed shotgun shell, but that is same as a can-cannon. Also, those tennis ball launchers made with tin cans and using lighter fluid I build as a kid… Man the ATF is gonna need a whole lot more prison space to lock up all those 12 year olds.

  14. Chip you nailed it. It simply government our of control. The 2nd Amendment was put into the Constitution so the people could protect themselves from a corrupt government. That is why it says “shall not infringe” so we can have what the government has to prevent a Holocaust. I believe the people should have what the government has including machine guns. The only gun control law there should be is that criminals can’t have any firearms. Thanks for your vote, pass the word. mrpresident2016.com

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