Results 1 to 11 of 11

Thread: Foregrip On Pistol - Legal Cases Involving Firearm Category Classifications.

  1. #1
    Regular Member neuroblades's Avatar
    Join Date
    Aug 2009
    Location
    , Kentucky, USA
    Posts
    1,240

    Question Foregrip On Pistol - Legal Cases Involving Firearm Category Classifications.

    This should get the juices flowing in this forum. Recently I had been pondering something and after some research I was kind of surprised with the information that I had found on the topic. What topic you ask? Is it legal to mount a foregrip on a pistol (for better stability testing). I had encountered this topic and had heard a million inputs and ideas but until recently I had never researched the issue myself until a few weeks ago. It is a assumed fact that mounting a foregrip on a pistol is illegal under the NFA as per BATFE, unless you ante up the $200 fee to have it re-classified as an AOW (Any Other Weapon), a classification that's generally for smooth bore Short Barrel Shotguns (SBS). Well, according to what the BATFE would like us to think, here's what some legal cases and ruling have been in the past upon the topic of foregrips on pistols:

    "The AOW listing is one area of legal debate with respect to the addition of the foregrip to a handgun/pistol. BATFE has held that it is illegal to place an aftermarket foregrip on any pistol/handgun without first registering it as an AOW and paying the $200 "making tax" imposed by the National Firearms Act (NFA). BATFE has made the decision that a handgun (but not a machine gun, since a machine gun is not also legally an AOW) with more than one hand grip at an angle to the bore is an AOW. BATFE reasoning is based on the firearm: a) being concealable on the person, and b) not meeting the definition of a "pistol" in the regulations promulgated under the NFA (not the Gun Control Act of 1968 [GCA] where the definition in law resides for a handgun/pistol), as BATFE deems a pistol/handgun is a firearm with a single grip at an angle to the bore. However, two federal cases exist that counter this finding. At least one federal magistrate has decided that if the grip is added later, the gun is not "originally designed" to be fired by holding in more than one grip, and thus putting a second grip on a hangun/pistol does not make it an AOW. BATFE does not regard the this magistrate's decision as binding. The case is U.S. v. Davis, Crim No. 8:93-106 (D.S.C. 1993) (Report of Magistrate, June 21, 1993).[5] The prosecution was dismissed at the request of the Government before any review of that determination by the trial judge.

    In another federal case, US v. Fix (UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Christopher FIX, Defendant-Appellant. No. 00-10789. August 29, 2001),[6] the 5th Circuit Federal Appeals Court countered BATFE. Originally, in the trial case, Fix was convicted under 26 U.S.C. 5861(d) of possession of an unregistered NFA firearm found during a search of his home and business as a weapon that required NFA registration. In US v. Fix, he appealed and the 5th Circuit Court of Appeals reviewed the trial case. The 5th Circuit noted that Fix was a defendant who was found to be in possession of a handgun/pistol that had a second pistol/foregrip attached. On appeal, Fix argued that the Government/BATFE did not prove the handgun/pistol with a second pistol grip added was an unregistered NFA firearm. The 5th Circuit Court of Appeals presided and found in a related provision that a GCA "firearm" is defined by a list of eight weapons and a catchall provision of "any other weapon." See 26 U.S.C. 5845(a). "Any other weapon" includes "any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive," but not "a pistol . . . having a rifled bore . . ." See 26 U.S.C. 845(e). Weapons not included in the definition of firearm in 5845 need not be registered under 5861(d). Fix argues that his firearm was a pistol, not an NFA AOW that met the exception in 5845(e), and, therefore, did not need to be registered under 5861. The 5th Federal Circuit Court of Appeals found that the Government/BATFE failed to prove a violation of 5861(d) for two reasons. First, the weapon did not fit the definition required by the statute in the NFA. The provision defining "pistol" for the purposes of the statute is 27 C.F.R. 179.11, which defines a pistol as "a weapon originally designed, made, and intended to fire a projectile (bullet) from one or more barrels when held in one hand..." The government argues that because the handgun/pistol was modified to be fired with two hands, it "falls out" of the definition of pistol and falls back into the definition of "any other weapon" in 5845. The 5th Circuit found BATFE's argument ignores the definition's requirement that the weapon be capable of being held with one hand at the time it was originally designed and made. As written, the GCA or NFA definition does not consider modifications of the weapon by the owner. The 5th Circuit court further found that the handgun/pistol in this case was originally designed and made to be fired with one hand, and still could be, despite the addition of a foregrip. Second, the definition of "any other weapon" in 5845(a) and (e) expressly excludes weapons with a rifled bore which this handgun/pistol had. The 5th Circuit held that the "any other weapon" provision was intended as a catch-all category in which to gather sawed-off shotguns and other hybrid weapons. A sawed-off shotgun may be concealed like a pistol, but would have the smooth bore of a shotgun. The 5th Circuit court also noted that the Government/BATFE's own witness stated that the involved handgun/pistol had a rifled bore, and thus, cannot be considered an "any other weapon."

    This would make one wonder, being that a pistol wouldn't legally fall under the AOW classification being that it has a rifled barrel and that at the time it is produced, it DOES have only one grip and can be fired with only one hand. According to the research, when those laws were written they were only meant to apply to the pistol upon manufacturing, NOT after the weapon was purchased by an end user.

    OK, by-passing our individual thoughts upon the issue of if this is a worthwhile endevour or not, what does everyone think about the topic?

    SOURCE: http://en.wikipedia.org/wiki/National_Firearms_Act
    Last edited by neuroblades; 09-30-2012 at 08:01 PM. Reason: Added SOURCE site for reference.
    Got SIG? MOLON LABE

  2. #2
    Banned
    Join Date
    Jan 2012
    Location
    earth's crust
    Posts
    17,838
    I would answer but I know the moderators don't like to have this topic discussed .... they only want non-controversial handguns included in the forum...IMO

  3. #3
    Regular Member DrakeZ07's Avatar
    Join Date
    Mar 2011
    Location
    Lexington, Ky
    Posts
    1,107
    Quote Originally Posted by davidmcbeth View Post
    I would answer but I know the moderators don't like to have this topic discussed .... they only want non-controversial handguns included in the forum...IMO
    Umm, Neuro's post doesn't break any of the stated rules, except for maybe skirting rule #8, by not posting this topic in the General Discussion... It still applies to Pistol/Firearm discussion, doesn't involve long-gun carry, and only references Shotguns in passing to emphasis the point from a US Court ruling.

    (8) KEEP IT ON-TOPIC: All gun rights discussions not directly related to open carry should take place in the "General Discussions" forum and topics that are not related to gun rights at all should take place in "The Lounge". Please police your own posts before posting them and help keep OCDO strong and focused.
    He even added a citation of the source to be within rules~

    Sorry Neuro, but You've blown my mind on the lengths and depths of your impressive topic, and though I never thought of it before, meaning, having had used a second foregrip on autos [semi/pistol], and having had friends do so, it never crossed my mind as to if it was actually legal or not, nor have any LEO's who saw/fired them with me, ever said anything about it. XD

    I deem you, Neuroblades, the Enlightened.
    Last edited by DrakeZ07; 10-01-2012 at 06:27 AM. Reason: Fixed one word, I misspelled 'even' >.>
    I'm a proud openly gay open carrier~
    Trained SKYWARN spotter, and veteran Storm Chaser.
    =^.^= ~<3~ =^.^=
    Beware the Pink Camo clad gay redneck.

  4. #4
    Activist Member
    Join Date
    Dec 2010
    Location
    Ashland, KY
    Posts
    1,847
    Quote Originally Posted by neuroblades View Post
    This should get the juices flowing in this forum. Recently I had been pondering something and after some research I was kind of surprised with the information that I had found on the topic. What topic you ask? Is it legal to mount a foregrip on a pistol (for better stability testing). I had encountered this topic and had heard a million inputs and ideas but until recently I had never researched the issue myself until a few weeks ago. It is a assumed fact that mounting a foregrip on a pistol is illegal under the NFA as per BATFE, unless you ante up the $200 fee to have it re-classified as an AOW (Any Other Weapon), a classification that's generally for smooth bore Short Barrel Shotguns (SBS). Well, according to what the BATFE would like us to think, here's what some legal cases and ruling have been in the past upon the topic of foregrips on pistols:

    "The AOW listing is one area of legal debate with respect to the addition of the foregrip to a handgun/pistol. BATFE has held that it is illegal to place an aftermarket foregrip on any pistol/handgun without first registering it as an AOW and paying the $200 "making tax" imposed by the National Firearms Act (NFA). BATFE has made the decision that a handgun (but not a machine gun, since a machine gun is not also legally an AOW) with more than one hand grip at an angle to the bore is an AOW. BATFE reasoning is based on the firearm: a) being concealable on the person, and b) not meeting the definition of a "pistol" in the regulations promulgated under the NFA (not the Gun Control Act of 1968 [GCA] where the definition in law resides for a handgun/pistol), as BATFE deems a pistol/handgun is a firearm with a single grip at an angle to the bore. However, two federal cases exist that counter this finding. At least one federal magistrate has decided that if the grip is added later, the gun is not "originally designed" to be fired by holding in more than one grip, and thus putting a second grip on a hangun/pistol does not make it an AOW. BATFE does not regard the this magistrate's decision as binding. The case is U.S. v. Davis, Crim No. 8:93-106 (D.S.C. 1993) (Report of Magistrate, June 21, 1993).[5] The prosecution was dismissed at the request of the Government before any review of that determination by the trial judge.

    In another federal case, US v. Fix (UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Christopher FIX, Defendant-Appellant. No. 00-10789. August 29, 2001),[6] the 5th Circuit Federal Appeals Court countered BATFE. Originally, in the trial case, Fix was convicted under 26 U.S.C. 5861(d) of possession of an unregistered NFA firearm found during a search of his home and business as a weapon that required NFA registration. In US v. Fix, he appealed and the 5th Circuit Court of Appeals reviewed the trial case. The 5th Circuit noted that Fix was a defendant who was found to be in possession of a handgun/pistol that had a second pistol/foregrip attached. On appeal, Fix argued that the Government/BATFE did not prove the handgun/pistol with a second pistol grip added was an unregistered NFA firearm. The 5th Circuit Court of Appeals presided and found in a related provision that a GCA "firearm" is defined by a list of eight weapons and a catchall provision of "any other weapon." See 26 U.S.C. 5845(a). "Any other weapon" includes "any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive," but not "a pistol . . . having a rifled bore . . ." See 26 U.S.C. 845(e). Weapons not included in the definition of firearm in 5845 need not be registered under 5861(d). Fix argues that his firearm was a pistol, not an NFA AOW that met the exception in 5845(e), and, therefore, did not need to be registered under 5861. The 5th Federal Circuit Court of Appeals found that the Government/BATFE failed to prove a violation of 5861(d) for two reasons. First, the weapon did not fit the definition required by the statute in the NFA. The provision defining "pistol" for the purposes of the statute is 27 C.F.R. 179.11, which defines a pistol as "a weapon originally designed, made, and intended to fire a projectile (bullet) from one or more barrels when held in one hand..." The government argues that because the handgun/pistol was modified to be fired with two hands, it "falls out" of the definition of pistol and falls back into the definition of "any other weapon" in 5845. The 5th Circuit found BATFE's argument ignores the definition's requirement that the weapon be capable of being held with one hand at the time it was originally designed and made. As written, the GCA or NFA definition does not consider modifications of the weapon by the owner. The 5th Circuit court further found that the handgun/pistol in this case was originally designed and made to be fired with one hand, and still could be, despite the addition of a foregrip. Second, the definition of "any other weapon" in 5845(a) and (e) expressly excludes weapons with a rifled bore which this handgun/pistol had. The 5th Circuit held that the "any other weapon" provision was intended as a catch-all category in which to gather sawed-off shotguns and other hybrid weapons. A sawed-off shotgun may be concealed like a pistol, but would have the smooth bore of a shotgun. The 5th Circuit court also noted that the Government/BATFE's own witness stated that the involved handgun/pistol had a rifled bore, and thus, cannot be considered an "any other weapon."

    This would make one wonder, being that a pistol wouldn't legally fall under the AOW classification being that it has a rifled barrel and that at the time it is produced, it DOES have only one grip and can be fired with only one hand. According to the research, when those laws were written they were only meant to apply to the pistol upon manufacturing, NOT after the weapon was purchased by an end user.

    OK, by-passing our individual thoughts upon the issue of if this is a worthwhile endevour or not, what does everyone think about the topic?

    SOURCE: http://en.wikipedia.org/wiki/National_Firearms_Act
    It is illegal to add a foregrip to a pistol, regardless of whether it is a vertical foregrip or semi-horizontal. Some people like to assume the only foregrip you can't add is a vertical one, but this is NOT true. If you add any foregrip to a pistol you are altering the pistol's designation as a firearm designed to be fired with one hand, to a firearm NOW designed to be fired with two hands.

    If you want to add a foregrip to a pistol, it does NOT cost $200. To receive a AOW stamp, you only have to pay $5, and complete all necessary paperwork. The Title 2 dealer where you complete the paperwork might charge you some fee, but on the government side it is only $5.

    I am in the process of obtaining a SBS (a short barreled shotgun with a pistol-grip), which will only cost me $5 since I am using a shotgun that has never had a stock attached, and this qualifies as an AOW.

    Just for informative reasons, you can also manufacture your own SBS or SBR by paying $200 for a manufacturing stamp. This is a very easy way to manufacture your own SBS or SBR because with the shotgun all you have to do is take a pipe-cutter to the barrel, and if you are making a SBR AR-15 all you do is purchase a pistol upper and put it on your registered SBR lower.

    Keep in mind though, once you register a rifle or shotgun as a SBR or SBS, it will stay that way and cannot be sold like an ordinary firearm. If you register an AR lower as an SBR, then it cannot be sold with the original 16" upper unless you have it de-registered, which means you must sale the pistol upper unless you have a pistol lower that it will go with before you de-register. You could always sale it to a Title 2 dealer, but you would probably lose money.

    If you turn a pistol into an AOW by adding a foregrip the same applies; it will then be registered as an AOW and cannot be sold unless it is sold to a Title 2 dealer or other legal way, or unless you have it de-registered.

    Keep in mind, if you do decide to de-register a firearm, you do NOT get your money back that you sent for the stamp.
    Last edited by KYGlockster; 10-01-2012 at 09:09 PM.
    "I never in my life seen a Kentuckian without a gun..."-Andrew Jackson

    "Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined."-Patrick Henry; speaking of protecting the rights of an armed citizenry.

  5. #5
    Activist Member
    Join Date
    Dec 2010
    Location
    Ashland, KY
    Posts
    1,847
    Quote Originally Posted by gutshot View Post
    The part of the above quote that I have emphasized is incorrect. The transfer of an AOW is $5, but the making of any NFA weapon is a $200 tax. The original conversion would be $200, then the transfer to another person would be $5. A dealer is not needed to complete the paperwork for either the "making" or a transfer as long as it is done instate. Most people get a dealer to do it to insure that it is done correctly, but its not required. We also need to be careful of the terms we use. A SBS (short barreled shotgun) is not an AOW and vise versa. An AOW can not be made from a shotgun. A shotgun must be manufactured to be fired from thr shoulder. So, a "shotgun like" weapon that has never had a stock on it is not a shotgun. If it has a pistol grip, it is a pistol. If it has no grip at all it is just a frame. A pistol or frame of this type can be made into a shotgun, a pistol or an AOW, but not a SBS. You could take two identical weapons, one a shotgun and the other a "shotgun like" with a pistol grip. If you shortened the barrels on both to 12 inches. and put full stocks on both, you would end up with two identical weapons, one would have to be registered as a SBS the other as a AOW, even though no one could tell them apart. This NFA stuff forces us to do some very strange things sometimes and poses some interesting dilemmas. What would happen if a rifled barrel were put on the AOW, There are rifled barrels for shotguns, some sabot slug guns require them. Does the AOW then become trasformed into a SBR that It could not have been just a few minutes earlier?
    Yes, according to the federal government a short barreled shotgun with a pistol grip is not considered a SBS, but it is to me. I know it [PG shotgun] is considered an AOW, and nothing else, but it IS still a shotgun regardless of whether it had a stock or not, and the federal government cannot change what it is with their ignorant terminology in their ignorant law.

    You are correct about the AOW transfer. I guess I read some information wrong and took someone at their word because of their occupation. This really upsets me; I was told it would only be $5 and I was excited. I am still going to go this route regardless because I really want a double barrel 12 gauge that is only slightly larger than a handgun -- just need to get the funds together.
    "I never in my life seen a Kentuckian without a gun..."-Andrew Jackson

    "Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined."-Patrick Henry; speaking of protecting the rights of an armed citizenry.

  6. #6
    Banned
    Join Date
    Jan 2012
    Location
    earth's crust
    Posts
    17,838
    I am very surprised that a court did not view "any other" as being too vague to apprise a person of what was meant .. they say it all the time for other laws, including other gun laws.

  7. #7
    Regular Member neuroblades's Avatar
    Join Date
    Aug 2009
    Location
    , Kentucky, USA
    Posts
    1,240
    It seems that at least technically, that mounting a foregrip on a pistol aftermarket might possibly be legal in a sense. In at least the cases stated above in the legal speak, the courts respectively upheld the fact that the law was too vague and with following the stated law, technically, having a foregrip mounted was not in violation of said law.

    It would definitely be interesting to have this one hear out and a final decision made and clarified. Hopeful wishing I guess. *LOL*
    Got SIG? MOLON LABE

  8. #8
    Regular Member Gil223's Avatar
    Join Date
    Jan 2012
    Location
    Weber County Utah
    Posts
    1,428
    designed, made, and intended to fire a projectile (bullet) from one or more barrels when held in one hand
    And where does it say it must be used as it was "designed, made and intended"? Even with a foregrip, the pistol proper would still be "held in one hand", and simply supported by the other. I don't have a foregrip, but I (and, I would think, several hundred thousand others) employ the ever-popular two-handed grip. Are we all in violation of the law? Pax...
    MOLON LABE
    COUNTRY FIRST
    Glocks ROCK!

  9. #9
    Regular Member
    Join Date
    Mar 2010
    Location
    Richland, Washington, USA
    Posts
    387
    Quote Originally Posted by KYGlockster View Post
    It is illegal to add a foregrip to a pistol, regardless of whether it is a vertical foregrip or semi-horizontal. Some people like to assume the only foregrip you can't add is a vertical one, but this is NOT true. If you add any foregrip to a pistol you are altering the pistol's designation as a firearm designed to be fired with one hand, to a firearm NOW designed to be fired with two hands.
    This is not correct either. The ATF released a letter stating that the magpul AFG (angled fore grip), which is an additional grip that is at a an angle to the barrel instead of perpendicular does not constitute making an AOW.

    Read question #7 here http://www.guntrustlawyer.com/ATF%20...R%20Pistol.pdf

  10. #10
    Regular Member
    Join Date
    Sep 2009
    Location
    Slidell, Louisiana
    Posts
    2,464
    Quote Originally Posted by KYGlockster View Post
    It is illegal to add a foregrip to a pistol, regardless of whether it is a vertical foregrip or semi-horizontal. Some people like to assume the only foregrip you can't add is a vertical one, but this is NOT true. If you add any foregrip to a pistol you are altering the pistol's designation as a firearm designed to be fired with one hand, to a firearm NOW designed to be fired with two hands.

    If you want to add a foregrip to a pistol, it does NOT cost $200. To receive a AOW stamp, you only have to pay $5, and complete all necessary paperwork. The Title 2 dealer where you complete the paperwork might charge you some fee, but on the government side it is only $5.

    I am in the process of obtaining a SBS (a short barreled shotgun with a pistol-grip), which will only cost me $5 since I am using a shotgun that has never had a stock attached, and this qualifies as an AOW.

    Just for informative reasons, you can also manufacture your own SBS or SBR by paying $200 for a manufacturing stamp. This is a very easy way to manufacture your own SBS or SBR because with the shotgun all you have to do is take a pipe-cutter to the barrel, and if you are making a SBR AR-15 all you do is purchase a pistol upper and put it on your registered SBR lower.

    Keep in mind though, once you register a rifle or shotgun as a SBR or SBS, it will stay that way and cannot be sold like an ordinary firearm. If you register an AR lower as an SBR, then it cannot be sold with the original 16" upper unless you have it de-registered, which means you must sale the pistol upper unless you have a pistol lower that it will go with before you de-register. You could always sale it to a Title 2 dealer, but you would probably lose money.

    If you turn a pistol into an AOW by adding a foregrip the same applies; it will then be registered as an AOW and cannot be sold unless it is sold to a Title 2 dealer or other legal way, or unless you have it de-registered.

    Keep in mind, if you do decide to de-register a firearm, you do NOT get your money back that you sent for the stamp.
    There are several inaccuracies in this post. Some of these have already been addressed.

    It should be noted that...

    "If you register an AR lower as an SBR, then it cannot be sold with the original 16" upper unless you have it de-registered, which means you must sale the pistol upper unless you have a pistol lower that it will go with before you de-register."

    .. is not the case. The lower can be transferred(sold) with a barrel of any length. I think KyGlockster meant that once the lower is registered as a SBR it will remain so regardless of the barrel length of the upper attached.

    Also, I would be cautious of...

    "This is a very easy way to manufacture your own SBS or SBR because with the shotgun all you have to do is take a pipe-cutter to the barrel,"

    ... because often times a shotgun barrel is tapered, if you take a pipe-cutter to the barrel, you may find it difficult to effect a straight cut. But with appropriate determination, you may end up with a slinky gun so then you'll have to register it as an AOW.

  11. #11
    Regular Member
    Join Date
    Aug 2007
    Location
    Granite State of Mind
    Posts
    4,510
    Quote Originally Posted by gutshot View Post
    A SBS (short barreled shotgun) is not an AOW and vise versa. An AOW can not be made from a shotgun. A shotgun must be manufactured to be fired from thr shoulder. So, a "shotgun like" weapon that has never had a stock on it is not a shotgun. If it has a pistol grip, it is a pistol. If it has no grip at all it is just a frame. A pistol or frame of this type can be made into a shotgun, a pistol or an AOW, but not a SBS.
    There is also another permutation: a pistol grip "shotgun-like" firearm that can't be fired from the shoulder, but has a barrel of 18+ inches and an overall length of 26+ inches, is neither an SBS nor an AOW. It is "any other firearm", and a purchaser must be 21 or older to buy one from a dealer. No NFA paperwork or tax stamp required.

Tags for this Thread

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •