It's a Felony to Hold a Handgun with Two Hands: Redesigning Law

For real, it's felony to hold handgun with two hands. At least it is if you use the ATF's new legal definition of the word redesign. What's interesting about this new legal term is that it did not require any legislator or act of congress to write a federal law even though the result can be enforced federally. The ATF simply wrote a letter, and boom, they created a new legal definition that has some major impacts. The letter the ATF wrote was in response to a lot of controversy surrounding the Sig Sauer Arm Stabilizing Brace which the ATF previously determined that by attaching it to a pistol did not change the classification of a firearm from a pistol to a rifle. In this post I'll go into the details of this legal language and how it could be applied in other firearm laws.

If you want to know more about the specifics of the ATF's letter and how it is legal to do what they have done in the American legislative system check out the following video. I'll make a separate post just on the Sig Sauer Arm Brace and legality around this topic alone. For the purpose of this post however, I want to look at the impact of this legal term and how it relates to other firearm laws.

Let's take a look at the legal definition that the ATF created. In the ATF letter they quote the original language in the NFA that has been used to make this legal determination.

The NFA, 26 USCS § 5845, defines “firearm,” in relevant part, as “a shotgun having a barrel or barrels of less than 18 inches in length” and “a rifle having a barrel or barrels of less than 16 inches in length.” That section defines both “rifle” and “shotgun” as “a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder….”

ATF Letter on Stabilizing Braces

Redesign

The key term here is the word redesign. In the original law this term was not legally defined, and that's an important distinction because this allowed the ATF to apply their own legal definition to the word. I would like to explicitly state that this is what the common understanding of the word redesign in context is: to physically alter the original design of a firearm so that it alters the intent of how the firearm is to be used. I think that most people would agree with this understanding and that a redesign constitutes a physical change.

The ATF on the other hand pulled their definition of redesign out of a modern day dictionary. This, in itself, is inappropriate because the law was written in 1934. They should have used a period correct dictionary if they wanted to go down this road since the meaning of language can be interpreted differently over time. I've looked at some dictionaries from this era and was unable to locate a single definition for the word redesign in dictionaries from that time period, which may be a good reason why the ATF did not do this. Period terms that are defined are words like design and the re prefix, but redesign itself is not defined. In my opinion the ATF really twists this definitions in a way that is indefensible.

The GCA does not define the term “redesign” and therefore ATF applies the common meaning. “Redesign” is defined as “to alter the appearance or function of.” See e.g. Webster’s II New College Dictionary, Third Ed. (2005).

The GCA that the ATF refers to is the Gun Control Act of 1968 which modified the original NFA and is the amended version of the 1934 law. See my other post about the history of the NFA and GCA. Later in the letter the ATF makes the following statement.

The pistol stabilizing brace was neither “designed” nor approved to be used as a shoulder stock, and therefore use as a shoulder stock constitutes a “redesign” of the device because a possessor has changed the very function of the item. Any individual letters stating otherwise are contrary to the plain language of the NFA, misapply Federal law, and are hereby revoked.

The ATF's use of this definition means that by using a firearm in a manner other than the way it was originally intended constitutes a redesign. They claim that you are changing the function of the firearm by misusing it in a way than it was originally intended. That's a bit of a stretch if you ask me, but keep in mind its a law now. Check out this blog post from a lawyer  on the fundamental flaws in the ATF determination. This opens up a whole slew of ways that this could be applied to other firearms laws however and lets take a look at a few.

Firing a Handgun with Two Hands
First, let's look at my original comment here about it being a felony to fire a handgun with two hands. Here is the definition of a Handgun according to the GCA.

“Handgun” is defined under Federal law to mean, in part, a firearm which has a short stock and is designed to be held and fired by the use of a single hand…. Gun Control Act of 1968, 18 U.S.C. § 921(a)(29)

The key part of this definition is that handguns (and pistols) are designed to be fired with one hand. The ATF has long held that attaching a vertical fore-grip to a handgun redesigns a weapon to be fired as from two hands and then classifies it as Any Other Weapon or an AOW under the NFA. You can read the ATF letter on vertical fore-grips being attached to handguns. This means that owning a handgun that is designed to be fired with two hands requires NFA registration, which under normal circumstances would not be required. This is where the ATF stands on this topic.

ATF has long held that by installing a vertical fore grip on a handgun, the handgun is no longer designed to be held and fired by the use of a single hand. Therefore, if individuals install a vertical fore grip on a handgun, they are “making” a firearm requiring registration with ATF’s NFA Branch. Making an unregistered “AOW” is punishable by a fine and 10 years’ imprisonment. Additionally, possession of an unregistered “AOW” is also punishable by fine and 10 years’ imprisonment. 

If you apply the ATF's newly crafted word redesign to this then simply by holding a handgun with two hands you have redesigned it because you have changed the function of the firearm and are using in a way that was not intended, since handguns are designed to be fired with only one hand you are now in violation of the NFA and have reclassified the handgun as an AOW and are committing a felony with a 10-year prison sentence attached to it.

ATF Letter on Vertical Fore Grips

Vertical Fore-Grips on Handguns
Now this same logic could be used the other direction too. Suppose you constructed a handgun and attached a vertical fore-grip to it, but never used the vertical fore-grip as a second hand grip. It was merely used as a 'cosmetic feature'. Since you redesigned the function of the vertical grip to be a cosmetic feature does it no longer fall into the classification of an AOW?

Machineguns and Art
To a further extreme, if you built a functional machinegun which is an outright banned firearm but framed it and hung on your wall and called it 'art'. As long as you never actually went out and shot the firearm, you just used it as an art piece you could argue that you have redesigned it from being a machinegun to being 'art' and have changed the function of the firearm. You can see where this legal term could get into some really interesting defense arguments.

That being said, I'm not suggesting that you do any of the above because you're risking some serious jail time if you do. But, it makes you think doesn't it? In the end I think the ATF has made a major mistake by making this definition and have weakened other firearm laws because of it. I've got a strong feeling that this letter is going to come back and bite them, and hard. I also have a feeling that if they actually took someone to court over shoulder firing a pistol with an arm stabilizing brace that a judge would rule that the ATF's definition is wrong and the case would be thrown out. But, until it's challenged in court it remains law.