Five round limit for shotguns?

This guy apparently wanted free room and board at tax payer expense so yesterday he, indirectly, requested the local police transport him to his new accommodations:

According to information from the Birmingham Police Department, the Birmingham Police 911 Communications Center received a call about 7:00am CT Wednesday, August 12, 2009, from a man stating his intent to kill a Birmingham Police Officer.

The man called the officer by name and further stated that if he could not find that officer, he would kill every Birmingham Police Officer until he found that particular officer.
Detectives gathered information received by the communications center and later identified the caller as the suspect Marlon Simmons.

After obtaining a warrant for the subject, the Birmingham Police Crime Reduction Team (CRT) located the subject at his home at 7232 2nd Avenue North.

The subject was taken into custody without incident, but was found to have a rifle and handgun in his possession.

Nothing particularly blog-worthy there but what is interesting to me is the following:

While executing the search warrant investigators recovered an SKS type rifle, AR-15 rifle, 12 gauge semi-automatic shotgun, hobby cord (fuse), body armor, and assorted ammunition.

According to ATF Agents the shotgun was illegal due to its magazine capacity that is between 10 to 20 shotgun shells.

Huh? There is a Federal law on shotgun magazine capacity? Sure, if it is a “Street Sweeper” or some other specific shotgun with a scary name or looks I know the U.S. Attorney General declared them “destructive device” and got them banned. But the above article sounds a little more generic than that. So doing a little more research I came up with this, an ATF letter stating (emphasis added):

A shotgun with a telescoping stock or a magazine greater than 5 rounds is prohibited from importation into the United States under the provisions of section 925(d)(3) of Title 18, United states code (U.S.C.). Assembly of such a shotgun from imported parts is prohibited under 18, U.S.C. Section 922(r). The implementing regulations in Title 27, Code of Federal Regulations, Part 478, Section 478.39 (formerly Part 178, Section 178.39) prohibit assembly of such a shotgun that contains more than 10 of the imported parts listed in paragraph (c) of the regulation. Please see the enclosed brochure for further information. Assembly of such a shotgun using 10 or less of the listed import parts is not prohibited. The shotgun is also subject to whatever State laws and local ordinances may apply.

I’ve looked up all the Title 18 and 27, section and subsection mumbo-jumbo and was unable to find any references to a five, or any other number, round limit. Did I just miss it? Or did the AG make a declaration that anything over five rounds was “not being particularly suitable for or readily adaptable to sporting purposes”?

I’ve sent a couple emails out to lawyers to see if I can get this clarified.

Update: My lawyer friend Mike came back with the answer:

This has to do with the import ban on “assault weapons” first put in by (former) NRA member George H.W. Bush in 1989. Under the GCA, the Secretary (now the AG) can bar importation of firearms that are not “particularly suitable for sporting purposes”. The import ban made a list of “assault weapons” unimportable per se. The 10 parts rule is contained in the reg cited. I remember that it was popular for a while to buy an American made Fal receiver and assemble it with 9 foreign parts.

The original AWB in 1994 had the following definition:

Section 921. Definitions
      (a) As used in this chapter –
                    (30) The term “semiautomatic assault weapon” means –
                (D) a semiautomatic shotgun that has at least 2 of –
          (i) a folding or telescoping stock;
          (ii) a pistol grip that protrudes conspicuously beneath the
        action of the weapon;
          (iii) a fixed magazine capacity in excess of 5 rounds; and
          (iv) an ability to accept a detachable magazine.

After the AWB ban expired in 2004 the ATF kept the definition in their policies to determine what is “particularly suitable for sporting purposes”:

Nonsporting Firearms – such as handguns which do not meet the sporting purpose criteria on ATF Form 4590, any rifle or shotgun with a folding stock or folding bayonet, and shotguns having a fixed magazine with a capacity of more than 5 cartridges and certain military style semiautomatic rifles and shotguns.

I think we have another opportunity for our congress critters to do some reform on our gun laws in the form of an amendment to some “must pass” legislation. In light of the Heller decision the “sporting purposes” definition needs to go. The Second Amendment isn’t about “sporting purposes”.


6 thoughts on “Five round limit for shotguns?

  1. Yup; this is one of the 922(r) gotchas. Once you add the right number of US parts, you’re OK. The downside is most Saigas don’t have US parts available for the conversion; the most popular gun to convert is a Saiga.

  2. just to be explicit, this limit applies to rifles, too. If he’s prosecuted for this, it’s the first 922(r) violation I’ve heard of that resulted in prosecution.

    For AK pattern rifles, you can replace the spring, bottom plate, and follower in your magazines to get a high enough count without surgery to the rifle. Once you replace the FCG, you can use imported magazines without such shenanigans.

  3. Was it an A.G. declaration or an act of congress that came up with five rounds as the magic number?

    An interesting point is how you would measure the capacity. In the case of a shotgun with a tubular magazine the answer would vary depending on the length of the shells.

    And for detachable magazine firearms does it matter if you actually have one of the magazines or can the greater than five magazine merely exist on the market for the shotgun or rifle to be declared illegal?

  4. I don’t know if it was Congress or an AG that said “five is the number”.

    There is reasonable fear that people producing 10 round magazines for Saigas are going to get the shotguns declared DDs retroactively. You can buy drum magazines for Saigas now, which is very close to the streetsweeper configuration; however, it’s “worse” because you can quickly swap magazines. The ATFE has done it once, and nothing prevents them from doing it again.

    If you own a Saiga that you think you might ever convert to a 922(r) configuration, now is the time to buy magazines. No, wait, that came out wrong; you should convert it, then buy magazines.

  5. When reading and quoting titles and such, please remember tot check the title page and see what it reads. On USC Title 27 the title concerns itself with the MANUFACTURE FOR SALE of ALCOHOL, TOBACCO and FIREARMS…..And when you look at USC 18 @922 you now need to look at the TABLE of AUTHORITIES to see if 922 has effect with USC 27 @478 and USC 27 @478.39….Sorry but I looked and did not find a Authority on 18 on 27 or 27 on 18 in your legal trail.

    no I’am not a lawyer, just a citizen who follows the law. So when I assemble a shotgun with a collection of 10 or more parts that I have IMOPORTED THROUGH THE PROCEDURE as prescribed under law then I’am in violation of that law. …. BUT ….If I assemble a shotgun from parts that I buy in one of the several States of the United States even if the parts are marked IMPORTED the title 18 conditions no longer apply as long as I do not assemble the shotgun for sale. (Please note that Title 27 does not apply because I did not Manufacture for sale.) So can I still sell my shotgun?

    Yes I will and can….How???????….VENUE…As a citizen I control venue and not an officer of the court, and should an OFFICER OF THE COURT try to apply control of the venue on this affair then they do so at their own peril. ERGO no charges will follow.

  6. If this goes to trial it will be interesting to watch. It would be the first 922r case that I have heard of.

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