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Where defendant plead guilty to five criminal counts for robbing a convenience store, and was sentenced to a statutory minimum of ten years imprisonment, all based upon the finding that he used a short-barrled shotgun during the crime, and the defendant appealed his sentence, the 1st U.S. Court of Appeals ruled that the sentence must stand because the weapon he used during the robbery fits within the statutory requirement s for a "shortbarreled shotgun". The statute (cited here for people interested) 18 USC secton 921(a)(6)is the defining law and 18 USC section 924(c)(1)(B)(i)is the mandatory sentence for use of a short barreled shortgun in a robbery, and the court reviewed the case De Novo (which means that it reviewed the fact and definition section like this was a new trial).The statute defines a shotgun as "a weapon designed or re-designed, 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 force through a smooth bore either a number of ball shot or a single projectile for each single pull of the trigger." As used in 924(c)(1)(B)(i)the staute defines a short barreled shtogun as "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 legth of less than twenty-six inches. It was uncontested that the shkotgun used was a sawed-off shotgun with a barrel measuring twelve and one quarter inches long and an overall length of twenty-seven and one quarter inches; it was also tested as a functional weapon.

Now readers can see by this that the defense argues that the weapon needs to violate both sections of the statute, both to length of barrel and overall length.

The shotgun was almost 8 inches short on barrel length but not short on overall length.

The defendant argued that the statute measurements had to be read conjunctively due to the use of the word 'and' instead of or. Only the barrel qualified under the statute he argues, and that section of the law cannot be applied.

The court disagreed with this theory and decided that each was a separate definition within which the weapon could be classified as 'shortbarreled'.

Quoting from a 4th Circuit Court case, this court found that if Congress wanted to create use only one narrow subset of modified shtoguns it could have done so by punishing "those with a barrel length of less than eighteen inches and an overall length of less than twenty-seven inches"
The court goes on to further state that the argument of the deciding judge is further enhance that the statutes speak of these weapons as "designed or redesigned and made or remade" as part of the definition of a shortbarrleled shotgun.

This case is interesting in that a lot of people who use and collect weapons are only familiar with the barrel length of eighteen inches and not the also inclusive requirement of a length overall of not less than twenty-seven inches.

I reason that if you have a pistol type grip or stock, which measures less than twenty-seven inches on a shotgun with a legal barrel length (at least 18 inches), you are in violation of the code.

Alan K

Interesting. What if the pistol grip is part of a "folding stock" type, which when extended complies with the legal lenght, and when folded, does not?

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Van Canna

Good point, Van

I know what you mean, I believe.

I envision a metal rod frame which can fold downward to allow the pistol grip to be utilized instead of the shoulder stock/frame.

My feeling is that using the same reasoning as it did in the case presented, that it would again reason that if congress wanted this to be an exception, it would have worded the statute that way. If the weapon, as made or remade, changed or altered so that the total length is less than allowed, I believe the court would fit this into the precluded weapon category.

That is the way I believe the court would rule just as it did in the case presented where defendant presented the defense that overall length being legal, the prosecution must fail because the statute required both elements, but the court ruled otherwise.

Nevertheless, you present a possible defense which some defense counsel would surely use.

Alan K

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"The Goddess of Justice is Blind"

Sorry Van-sensei,

Overall length "as configured" comes into play. (Sorry Alan-san, I forget the case). Regardless, if the useable and fireable shotgun has an overall length less than 27 inches, you're screwed... Period. Take a look at some of the pistol grips for, say, a Remington 870 or 1187... You'll see that the pistol grip could actually be shorter. They make them stick back so far so that the reciever and grip combo maintains the required 9" minimum. (9 + 18 = 27 ... and all is "legal") In fact most of the factory 18" barrels are 18-1/4+" just for margin!

The really bothersome thing is that in the Miller decision (after NFA'34, which is the section of the USC that Alan is citing), there wasn't any appeal. Not because there wasn't grounds, but because Miller had passed away AND the attorney's involved (not wanting to do it pro se) decided that it was an unimportant decision that would surely be overturned in the future. In the Miller decision, the SCOTUS didn't find that NAF'34 was Constitutional, but rather that "no evidence has been put before the court to indicate that a 'short-barreled shotgun' is a weapon in common militia or military use"... IOW, If evidence of the fact that "short-barreled shotguns" were used in every single tank in WWI as standard military issue, then the SCOTUS would have reasoned that it was a "weapon in common militia use" and therefore protected by the 2nd Amendment. Since there was no defense representation at all, that evidence was never put before the court and, as they saw it, could not be considered.

So, fundamentally, the Miller decision states that the only weapoons that are protected by the 2nd Amendment are those that are commonly used by the militia and the military! Naturally, since then, it has become popular in the fashion of the 3rd Reich to take the position that only those weapons that are of a "sporting purpose" (but not a military purpose... such as "assault weapons" {sic} ) are the ones that are "allowed".