This is an understandably common question since the length of a firearm’s barrel and the overall length (OAL) of a firearm both factor into the determination of whether said firearm is regulated under the National Firearms Act (NFA).
The ATF covers this exact topic in Chapter 2 of the NFA Handbook.
Starting with barrel length they have this to say (emphasis added):
“The ATF procedure for measuring barrel length is to measure from the closed bolt (or breech-face) to the furthermost end of the barrel or permanently attached muzzle device. Permanent methods of attachment include full-fusion gas or electric steel-seam welding, high-temperature (1100°F) silver soldering, or blind pinning with the pin head welded over. Barrels are measured by inserting a dowel rod into the barrel until the rod stops against the bolt or breech-face. The rod is then marked at the furthermost end of the barrel or permanently attached muzzle device, withdrawn from the barrel, and measured.”
Now that we know a permanently attached muzzle device is considered an extension of the barrel we can turn to their definition of overall length:
“The overall length of a firearm is the distance between the muzzle of the barrel and the rearmost portion of the weapon measured on a line parallel to the axis of the bore.”
Some people find this definition concerning since it specifically says muzzle of the barrel but does not mention a permanently attached muzzle device as in the definition of barrel length above. However, they clearly intend it to be read as included since we see this comment later in the handbook concerning removing items from the purview of the NFA:
“For example, a shotgun with a barrel length of 15 inches is an NFA weapon. If the 15- inch barrel is removed and disposed of, the remaining firearm is not subject to the NFA because it has no barrel. Likewise, if the 15 inch barrel is modified by permanently attaching an extension such that the barrel length is at least 18 inches and the overall length of the weapon is at least 26 inches, the modified firearm is not subject to the NFA. NOTE: an acceptable method for permanently installing a barrel extension is by gas or electric steel seam welding or the use of high temperature silver solder having a flow point of 1100 degrees Fahrenheit.”
That interpretation is also in keeping with the actual federal regulation (27 CFR 479.11) which states:
“The overall length of a weapon made from a shotgun or rifle is the distance between the extreme ends of the weapon measured along a line parallel to the center line of the bore.”
Finally, the ATF has issued an opinion letter which goes into much greater detail than the NFA Handbook and which specifically answers this question (See Question 4 on Page 3 below).
In summary, the length of a permanently attached muzzle device is added to both the barrel length and the OAL of a firearm for purposes of evaluating whether said firearm falls under the purview of the NFA.
Client:“I heard that even if you can’t legally own firearms, you can now hunt with black powder rifles. Is that right?”
Me:“There was a change that went into effect on July 1st of this year but it’s quite a bit more complex than that. It depends upon the nature of your felony offenses and exactly what type of black powder firearm you want to use. I have an article on my website that goes into more detail about the specifics.”
Client:“I saw that but it didn’t help me with my question. I don’t have any felonies. In my case I was involuntarily committed for treatment of depression over a decade ago. I would really like to be able to hunt again with firearms. Does this change do anything for me?”
Unfortunately for this potential client, the answer I had to give him was a resounding ‘No‘. The recent change to state law only allows those whose prohibition is based on certain felonies to purchase, possess, transport, and use certain black powder firearms. For more details on that scenario I would encourage you to read the original article which is linked above.
But for those prohibited from owning firearms because they have been acquitted of a crime by reason of insanity (§ 18.2-308.1:1), adjudicated legally incompetent or mentally incapacitated (§ 18.2-308.1:2), or involuntarily admitted or ordered to outpatient treatment (§ 18.2-308.1:3) there has been no equivalent change.
Under Virginia case law (see Armstrong v. Commonwealth, 549 S.E.2d 641), a firearm is any device that is made toexpel a projectile by the combustion of gunpowder or other explosive. Black powder firearms clearly meet this definition and therefore remain barred to those whose prohibition is based upon mental health issues.
If you are in a similar situation and would like to discuss your chances of getting your gun rights restored, please feel free to contact me for a free consultation.
Perhaps the least-understood federal firearms prohibitions are those codified at 18 U.S.C. 922(d)(9) and (g)(9).
These two sub-sections generally prohibit the acquisition, possession, and transportation of firearms by any person “who has been convicted in any court of a misdemeanor crime of domestic violence.”
While Virginia has its own statute which governs Assault and Battery Against a Family or Household Member (§ 18.2-57.2), the federal prohibition has a broader definition of “misdemeanor crime of domestic violence” which is found in 18 U.S.C. 921(a)(33).
That definition tells us:
the term “misdemeanor crime of domestic violence” means an offense that—
(i) is a misdemeanor under Federal, State, or Tribal law; and
(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
The term ‘element‘ in the context of criminal law is a legal term with a specific meaning. The simple version is that an ‘element’ of a particular crime is a fact that must be proven in order to secure a conviction. With this in mind, it is easy to interpret this definition as requiring a conviction under a statute which has, as an element, a requirement that the victim be ‘a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim‘.
But that isn’t how the courts interpret this statute. The Supreme Court addressed this exact issue in the 2009 case of United States v. Hayes (482 F.3d 749). They held that the statute need not include the existence of a “domestic relationship” as an element of the crime.
With that in mind, the following chart illustrates the process by which a person can evaluate whether a given conviction satisfies the federal definition (click on the image for a larger, more readable version).
So what does all this mean for Virginians?
It means that a person does not have to be convicted under Virginia’s Assault and Battery Against a Family or Household Member statute (§ 18.2-57.2) in order to be prohibited under the federal definition.
A misdemeanor conviction for any crime which involves the use (or attempted use) of physical force or the threatened use of a deadly weapon would suffice. This might include simple assault and battery, sexual battery, unlawful wounding, or brandishing, just to name the most obvious.
However, in order for any of these to trigger the prohibition, the crime had to have been committed against one of the enumerated parties (spouse, parent, children, etc). This leads us to the obvious question of how a given misdemeanor would be documented as involving said party.
The government’s current position on the discernment of these types of ‘factual predicates’ in varied state courts (as detailed in Attorney General Opinion, Opinions from Office of Legal Counsel, Vol. 31, May 17, 2007) is that “[t]he answer to that question may be gleaned from the record of conviction or the supporting record of proceedings in the court of conviction.” They go on to say that “[p]olice reports [alone] cannot answer that question.”
So … a person in Virginia who was charged with Assault and Battery Against a Family or Household Member but who subsequently negotiated a plea agreement to simple assault might still suffer under the federal prohibition if the conviction record shows that the victim of the assault matched one of the enumerated relationships from the federal definition.
If you have any concerns that you might be in this situation, feel free to contact me for a free consultation and to discuss what we might do to verify your status.
Last year I wrote an article admonishing those with felony convictions to not believe the oft-repeated rumor that felons can still possess, and hunt with, black powder firearms.
In that article I noted that, while ‘antique firearms’ are not prohibited to felons under federal law, Virginia state law still (at that time) prohibited it.
However, during the 2017 legislative session, Senator Mark Obenshain introduced a bill to correct that discrepancy (SB1533). His bill was subsequently signed into law by the governor and, with little fanfare, went into effect on July 1, 2017.
With the passage of this bill, § 18.2-308.2, which is the code section denying convicted felons the right to possess firearms generally, now has a subsection C2 which reads:
C2. The prohibitions of subsection A shall not prohibit any person other than a person convicted of an act of violence as defined in § 19.2-297.1 or a violent felony as defined in subsection C of § 17.1-805 from possessing, transporting, or carrying (i) antique firearms or (ii) black powder in a quantity not exceeding five pounds if it is intended to be used solely for sporting, recreational, or cultural purposes in antique firearms. For the purposes of this subsection, “antique firearms” means any firearm described in subdivision 3 of the definition of “antique firearm” in subsection G of § 18.2-308.2:2.
So let’s break this down. Does this mean that any felon can own any black powder firearm? The answer is a resounding No!
There are two limitations on the new law that felons will still need to review carefully before rushing out to buy a black powder firearm:
Limitation #1) Are they truly considered a non-violent felon under the new law?
In the new subsection we are given two code references to define ‘act of violence’ and ‘violent’ felony.
Under § 19.2-297.1, an “act of violence” means any one of the following crimes (whether convicted as a principal, accessory before the fact, or in conspiracy):
a. First and second degree murder and voluntary manslaughter under Article 1 (§ 18.2-30 et seq.);
b. Mob-related felonies under Article 2 (§ 18.2-38 et seq.);
c. Any kidnapping or abduction felony under Article 3 (§ 18.2-47 et seq.);
d. Any malicious felonious assault or malicious bodily wounding under Article 4 (§ 18.2-51 et seq.);
f. Except as otherwise provided in § 18.2-67.5:2 or § 18.2-67.5:3, criminal sexual assault punishable as a felony under Article 7 (§ 18.2-61 et seq.); or
g. Arson in violation of § 18.2-77 when the structure burned was occupied or a Class 3 felony violation of § 18.2-79.
Under § 17.1-805, a ‘violent felony’ encompasses an incredible number of criminal offenses. I will not enumerate them each individually here because it would render the article too long but I will point out that the list does contain offenses which a reasonable person might not consider to be violent, such as ‘damaging a railroad signal’.
If you are a convicted felon who has not had their firearm rights restored and are planning to purchase an ‘antique firearm’ based upon this new legislation, I would urge you, in the strongest possible terms, to review your convictions against this list before doing so.
Limitation #2) Does a particular black powder firearm meet the definition of ‘antique firearm’?
We see in the statutory language above that the definition of ‘antique firearm’ can be found in subsection G of § 18.2-308.2:2 which states that:
“Antique firearm” means:
1. Any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898;
2. Any replica of any firearm described in subdivision 1 of this definition if such replica (i) is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition or (ii) uses rimfire or conventional centerfire fixed ammunition that is no longer manufactured in the United States and that is not readily available in the ordinary channels of commercial trade;
3. Any muzzle-loading rifle, muzzle-loading shotgun, or muzzle-loading pistol that is designed to use black powder, or a black powder substitute, and that cannot use fixed ammunition. For purposes of this subdivision, the term “antique firearm” shall not include any weapon that incorporates a firearm frame or receiver, any firearm that is converted into a muzzle-loading weapon, or any muzzle-loading weapon that can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breech-block, or any combination thereof; or
4. Any curio or relic as defined in this subsection.
…
“Curios or relics” means firearms that are of special interest to collectors by reason of some quality other than is associated with firearms intended for sporting use or as offensive or defensive weapons. To be recognized as curios or relics, firearms must fall within one of the following categories:
1. Firearms that were manufactured at least 50 years prior to the current date, which use rimfire or conventional centerfire fixed ammunition that is no longer manufactured in the United States and that is not readily available in the ordinary channels of commercial trade, but not including replicas thereof;
2. Firearms that are certified by the curator of a municipal, state, or federal museum that exhibits firearms to be curios or relics of museum interest; and
3. Any other firearms that derive a substantial part of their monetary value from the fact that they are novel, rare, bizarre, or because of their association with some historical figure, period, or event. Proof of qualification of a particular firearm under this category may be established by evidence of present value and evidence that like firearms are not available except as collectors’ items, or that the value of like firearms available in ordinary commercial channels is substantially less.
The section I have underlined above is of particular concern to me as an attorney. There are a number of black powder firearms (mostly revolvers) which have commercially available drop-in conversion kits that allow them to fire fixed ammunition. Under this definition, once such a conversion kit becomes commercially available for a given firearm it would no longer meet the definition and would still be barred from ownership and use.
Once again, I would caution those who are planning to take advantage of this change in the law to shop carefully when selecting their ‘antique firearm’.
Conclusion
This is a good bill that goes a long way toward correcting the discrepancy that previously existed between Virginia and federal law on this topic. However, it requires those wishing to avail themselves of its benefits to do a significant amount of research beforehand. Failure to do so could place said person in danger of a charge of ‘felon in possession’.
I will end by noting that, if you have a non-violent felony, I would encourage you to contact me for a free consultation to discuss petitioning the court for a full restoration of your firearm rights.
Occasionally I will receive a call from a thoroughly confused potential client who has been denied a firearms purchase and doesn’t understand why.
They were able to honestly answer all of the questions on the ATF Form 4473 in the negative.
They have never been convicted of a misdemeanor crime of domestic violence.
They have never been convicted of a felony.
They have never suffered from any mental health issues.
In fact, the only conviction on their record at all is a misdemeanor charge for possession of marijuana from 10 months ago. They have not used marijuana, or any other illegal drugs since, and no longer consider themselves an ‘unlawful user of or addicted to any controlled substance‘.
So why did this conviction cause their purchase to be denied? They honestly answered question 11e ‘No’ and, unlike other questions where there are further instructions later in the form, that is not the case with this question.
The answer can be found in 27 CFR § 478.11 which provides the following detailed guidance concerning the interpretation of the phrase ‘unlawful user of or addicted to any controlled substance‘ (emphasis added):
An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g.,
a conviction for use or possession of a controlled substance within the past year;
multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year;
Note that under this definition, mere arrests (absent convictions) are sufficient to trigger a temporary purchase prohibition if more than one occurred during the last 5 years and at least one of them occurred within the 12 months preceding the date of the attempted purchase.
The due process and constitutional issues raised by such a broad definition are concerning but outside the scope of this article.
I should also point out that there are other disqualifying criteria in the regulation which I excluded as irrelevant to this particular topic but which a prospective buyer with any substance abuse history would be wise to read.
Ultimately there are two points to take away from this regulation:
The 4473 should be amended to include the criteria from 478.11 in an instructions section for question 11e; and
If you have a misdemeanor conviction for use or possession of a controlled substance within the past year or multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year then you cannot purchase a firearm from a licensed dealer.
Disclaimer: As always, this information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer may not be appropriate for other jurisdictions.
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