Using NFA (National Firearms Act) Items For Defensive Use
Disclaimer: I am not an attorney and the following is not legal advise of any kind but merely my thoughts and opinions.
With the rise in popularity of AR/AK pistols and SBRs/SBS/ (Short
Barreled Rifles and Shotguns) I wanted to address their legal and legitimate defensive use. I started this post just before the ATF issued new guidance regarding shouldering pistols with braces (go here to read it). Which basically states if you shoulder an rifle caliber pistol like and AR or AK pistol equipped with a brace you are in fact performing a “redesign” of the pistol into a SBR, which according to the NFA Handbook issued by the ATF and 26 U.S.C. § 5871 is punishable by up 10 years in prison and $250,000 in fines. The Truth About Guns has a good article about the implications of the ATF’s new guidance here.
NFA Weapons and Items.
NFA (National Firearms Act) regulated items such as SBRs (Short Barrel Rifles), SBSs (Short Barrel Shotguns), and suppressors (AKA Silencers) are being purchased for lawful use here in the United States and are among the fastest growing sectors of the firearms industry. NFA items require a one time $200 tax stamp paid to the (ATF) BATFE to possess and use. There are and special laws and regulations that govern the use or misuse of NFA items on the state and federal level, the most pertinent of which I will discuss in the later sections of this post.
There has also been a rise in the popularity of rifle caliber pistols such as AR, AK, and bufferless AR pistols. The ATF has complicated the use of these firearms with it’s changing rulings on the use of pistol ‘braces’ such as the SIG Brace and the KAK Blade pertaining to shouldering. The latest update(16JAN2016) from the ATF clearly states shouldering an pistol with a ‘brace’ constitutes an illegal redesign of a pistol into a SBR. As I stated earlier the full implications of this ruling is not known, as in the legalities of shouldering an AR pistol with a naked buffer tube etc. After this ruling was released I’m of the opinion that AK or other bufferless pistols are a no-go for defensive use due to the difficultly of use without a brace like appendage to stabilize it. My gut tells me that since these firearms do not have a buffer already, adding a stabilizing appendage to firearm makes it much more easy for the addition of such brace to be viewed as a redesign making it an illegal SBR. However since AR pistols have a buffer tube as part of their mechanical design, my opinion is they are less likely to be viewed as an illegal SBR by the ATF even if they were shouldered in the heat of the moment during a self defense shooting. Furthermore unless someone could prove you shouldered the AR pistol there is NO physical evidence to the ATF to suggest you were attempting to illegally redesign a pistol into a SBR.
Understanding the Affirmative Defense in defensive shootings.
Self defense law in most states offer the general principle is not to prove the defendant did not break the law by using deadly force but that defendant had no other choice but to break the law to save life. The defendant is guilty of shooting someone, but indemnified(forgiven) from all associated charges because that was the ONLY reasonable choice of the defendant to avoid potential death or the death of others. This principle is
known as an affirmative defense, meaning the defendant MUST prove innocence. There are exceptions to this affirmative defense principal especially in states with castle doctrine which provide more protection for justified shootings. However the best practice is to only use lethal force when you reasonably fear you or someone else is under an imminent threat of death and using lethal force is the only reasonable option you have to protect life.
The most important factor in a gunfight is WINNING the fight, all other considerations come after this one.
This should be obvious but is sometimes overlooked. You can’t defend yourself in court or be upset about your SBR being locked as evidence if you’re dead or laid up in the ICU. So consider if using an NFA weapon will enhance your ability to win a gunfight over a similar weapon system that is not an NFA item. Personally I feel that using a SBR or suppressor can definitely enhance your capability especially inside a building or vehicle. This article’s focus is on the Legal considerations of using an NFA item for defense not the tactics of their employment. The second objective is staying legal, refer to my post on Armed Civilian Active Shooter Response for more information about general legal considerations for using legal force.
Cost vs Capability of Defensive Tools.
Keep in mind that any weapon you use in a real situation will be confiscated and possibly
damaged from years of neglect while sitting in an evidence locker. So it only makes sense
that you should choose weapons or items that are not collectors items or excessively
expensive. For exmaple an SBR’d lower is only marginally more expensive than an AR pistol therefore if you lose it to evidence etc it’s not a huge loss. Think about how you want to structure your defensive tactics and then choose the tools to accomplish your tactical goals.
Mandatory Federal Sentencing using NFA items for Criminal Use.
Be cognizant that 18 U.S.C. 924(c) outlines very harsh mandatory sentencing for using an NFA Item in a “Crime of Violence” or “Drug Trafficking”. Keep in mind that someone must commit a “crime of violence” for 18 U.S.C 924(c) to apply, so use good judgement and only use lethal force if it’s justified and 18 U.S.C 924(c) won’t apply. Refer to a copy of the statute below for the actual verbiage if you want more details. The following is my simplified punishment bullets for using weapons including NFA and Assault weapons in “crimes of violence” or “drug trafficking”. The years listed are MINIMUM sentences.
-5 Years for possessing any firearm.
-7 Years for brandishing the firearm.
-10 Years for discharging the firearm.
-10 Years for SBRs, SBSs, and semi-auto Assault Weapons.
-30 Years for Silencers, Machine Guns, or Destructive Devices.
Also keep in mind that your state may also have additional laws pertaining to criminal use of weapons. This is just some information to keep in the back of your memory, stay legal and don’t shoot anyone you absolutely have to.
SBRs vs AR Pistols
It is unclear whether or not the ATF would consider shouldering an AR pistol with only a buffer tube a redesign thus putting the shoulder-er in violation of NFA or not. The ATF’s guidance being what it is, I feel this is another good reason to take the plunge to register an SBR. The cost is not much more and in my opinion, and a jury and or law enforcement agency is likely (my opinion) to look more favorably on someone who took the time and effort to properly register and pay tax on an SBR vs someone who could be viewed as subverting the law with an illegal pistol turned SBR. With NFA items the government must prove that you used the item in a “Crime of Violence” or “Drug Trafficking” in order for there to be additional penalties (state law excluded). But in the case of illegally redesigned AR pistols into a SBRs someone could potentially have a righteous self defense shooting and still get charged with the illegal SBR redesign.
-My opinion is I’d rather use an SBR for defensive use anywhere I know that I’m legal to have it IE my home, and general use in my state of residency.
-I would use an AR pistol equipped with just a buffer tub in situations where I need to travel into multiple states, into national or state parks where rifles are prohibited, or if I needed to keep it loaded in a vehicle (states may prohibit loaded rifles in vehicles where as AR pistols are covered under that same laws as Licensed Concealed Handguns CCW/CHL). Either way if I’m involved in a shooting with an AR pistol or SBR I will simply state to the Police that I feared for my life/lives of others, surrender my weapons and appropriate forms, and that I don’t wish to make a statement at that time.
Please leave and comments or questions, and feel free refer to references below.
(B) If the firearm possessed by a person convicted of a violation of this subsection
(C)In the case of a second or subsequent conviction under this subsection, the person shall—
(D) Notwithstanding any other provision of law—
(2)For purposes of this subsection, the term “drug trafficking crime” means any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46.