FAQ / Corrections Episode – The Legal Brief ~ VIDEO


The Gun Collective
The Gun Collective

USA –-(Ammoland.com)- Welcome back to The Legal Brief, the show where we CRUSH the various legal myths and misinformation surrounding various areas of the gun world. I’m your host Adam Kraut and today we are answering some of your most asked questions and correcting a few things I got wrong.

As you guys know, the point of this show is to spread correct information in the hopes that we can get rid of a lot of the myths and misinformation out there. In the comments, a few of you have pointed out things that you didn’t think were quite correct or I managed to catch something I said later on that wasn’t phrased correctly.

In the spirit of being right and not being afraid to admit when I make a mistake, I want to point out a few things that need clarification.

What The Heck is That
Guide to AOW’s (any other weapons) – The Legal Brief

Some of you may remember Episode 23, where we covered Any Other Weapons or AOWs and guys there is a ton of information we have already covered, so check out the playlist on Youtube. On the screen we flashed a few images when discussing some examples, such as this pen gun and this belt buckle gun. When I was reviewing the final cut of this episode without having finished my coffee, I failed to catch that neither example is an AOW.

You may be asking, why is that? Well, in relation to the pen gun, because it folds down and “looks” like a handgun, it is taken outside the purview of an AOW since it is no longer disguised. However, a true pen gun, like this Stinger, would be an AOW, because while it looks like a pen, it is capable of being concealed and can discharge a shot.

The belt buckle gun is not an AOW because you actually have to remove it from the buckle to fire it. However, a belt buckle gun like this old Nazi buckle, would have been an AOW because it is capable of being concealed and can discharge a shot. However, it is now considered a Curio and Relic and was removed from the purview of the NFA by ATF. The reason? The Bureau has determined that certain firearms on the list are primarily collector’s items and not likely to be used as weapons by reason of the date of their manufacture, value, design and other characteristics. Thus are excluded from the provisions of the NFA.

Prohibited Persons
Prohibited Persons – The Legal Brief

The other thing I wanted to correct came from Episode 27 where we covered when you lose your firearms rights. In the video, we discussed the definition of a crime punishable by more than one year imprisonment to NOT include a state law misdemeanor crime punishable by a term of imprisonment of two years or less.

When translating it to something a little less legalese I stated that a person who was convicted or plead guilty to a state law misdemeanor crime punishable by two years or more, they would be a prohibited person. Here’s the clarification to that.

If the state law misdemeanor is punishable by MORE THAN two years imprisonment, that person is prohibited under federal law. If the state law misdemeanor can be punished by imprisonment of up to and including two years, they are not prohibited under federal law.

So there’s a little clarification for you guys. Now, before we move on, I just want to clarify one other point. With a number of new viewers joining the ranks, I continue to receive questions from viewers about their particular circumstances or other state’s laws. If you ask me a question pertaining to your specific situation, odds are you will not receive a response. The purpose of the show is to explain the law, not give you advice as to the legality of what you are doing. Furthermore, I am only licensed to practice law in PA and at the federal level. As such, my commentary on other state’s laws or proposed laws will be limited in nature.

It’s not that I don’t want to help you, but in cases like that, I can’t.

I think you guys notice I do respond to questions in the comments frequently, but the email ones are a bit harder to keep up with. Here are a few topics that I’ve gotten a number of emails about.

Marijuana And Firearms Ownership

A number of you want to know about medical marijuana and firearms ownership. While a number of states have been legalizing marijuana in some fashion, mainly for medical purposes, it is still illegal at the federal level. As such, if you are a user of medical marijuana, according to federal law, you are an unlawful user of a controlled substance and would be prohibited from purchasing or possessing firearms and ammunition. ATF even released guidance to FFLs that if you use your medical marijuana card as photo ID, the licensee is to terminate the sale because you are an unlawful user for the purposes of federal law. Long story short, if you use marijuana for any purpose, you are a prohibited person.

Black Aces Tactical Firearm

Black Aces Tactical DT Short Barrel 12-Guage in stock at FL Shoot Straight Stores
Black Aces Tactical DT Short Barrel 12-Guage in stock at FL Shoot Straight Stores

During the AOW episode a number of people inquired how the Black Aces Tactical firearm was not a short barrel shotgun or an AOW. In order for the gun to be classified as a short barrel shotgun, it must be a shotgun with a barrel length of less than 18 inches OR any weapon made from a shotgun with an overall length of less than 26 inches. As we saw previously, in order to be a shotgun, the firearm has to, among other things, be designed to be fired from the shoulder. Since the receiver Black Aces uses was never a shotgun, it cannot be a short barrel shotgun.

The reason it is not an AOW is a little complicated so bear with me. Remember, we are not dealing with a shotgun. When we look at the definition of an AOW, we see that the term includes a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell. While this would at first blush would seemingly include the Black Aces Tactical firearm, it does not due to the vertical foregrip and the gun’s overall length. The firearm cannot be a pistol because of the vertical foregrip since it is no longer designed to be held and fired with one hand, however it could still be an AOW. With an overall length of more than 26 inches, it places it outside of what ATF considers to be concealable. Thus removing it from the purview of being an AOW. However, ATF has previously stated that the 26 inch figure is only a presumptive standard and is not set in stone. If the firearm were to meet the other criteria of an AOW and there was evidence the firearm in question was concealed on a person, it could potentially place that firearm in the category of an AOW. I’ve included that determination letter in the footnotes below.

Hearing Protection Act

Hearing Protection Act
Hearing Protection Act

I continue to receive questions relating to the Hearing Protection Act or HPA. Those include, when will it pass, will it include the refund and how will it affect me using my trust? Earlier in March, I spoke with one of the executives of a well known silencer manufacturer. They had relayed information to me from a meeting with congressional leaders that indicated the HPA was not going to be up for a vote this year and there were serious concerns about eliminating the tax revenue generated by transfers and the manufacturer of silencers, let alone the retroactive credit of taxes already paid.

In short, it doesn’t seem like the HPA will be heading to the floor this year, without some major reconciliation and changes.

However, that does not mean you shouldn’t be picking up the phone and calling your congressional representatives to act on the bill. If the HPA were to pass in its current form, there is nothing that would prevent you from adding silencers to your trust. However, they would be treated like any Title I firearm and the whole use and possession aspect would not longer be a concern, unlike with a Title II or NFA firearm. Not to mention, there are a number of individuals who use gun trusts for the estate planning aspect in relation to their Title I firearms.

Remember, if you think you catch a mistake, drop me a line or let me know down in the comments. I’ll be the first person to admit when I am mistaken and since the purpose of the show is to disseminate correct information, I have no problem making a correction, as you probably noticed. If you guys liked this episode, you know what to do, hit that like button and share it around with your friends. Have a question you want answered on this show, head over to The Legal Brief section on theguncollective.com. Be sure to check out my website adamkraut.com for more information on my quest to serve YOU on the NRA Board of Directors. Don’t forget to like The Gun Collective on Facebook, Instagram, YouTube, Full 30, Snap Chat and wherever else you can catch us on social media.

Corrections Correct Me Mistakes Error
Corrections Correct Me Mistakes Error

And as always thanks for watching!

Links for this episode:

  • AOW Episode – https://www.youtube.com/watch?v=uPJyozgPF3w
  • Prohibited Person Episode – https://www.youtube.com/watch?v=E7ZDP4av9eY
  • C&R List pg. 35 Belt Buckle – https://www.atf.gov/firearms/docs/guide/firearms-curios-or-relics-list-1972-2007-atf-p-530011/download
  • ATF Guidance to FFLs on Marijuana – https://www.atf.gov/file/60211/download
  • ATF Determination Letter Pertaining to OAL – http://www.nfaoa.org/documents/PistolGrippedShotgunLike.pdf
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Daniel L Moulder

How does someone who became prohibited under “The Baker Act” in FL (or similar law in another state) regain their gun rights? How about someone that had this happen in FL and then moved to another state. This is for someone who has received treatment & is no longer a “danger”?
Thank you in advance.

Dirk Mcgirk

According to Collins English Verb Tables, plead is correct.

Sam Cohen

The Collins tables, cited by Dirk McGirk above, are for non-English-language speakers, and if they’re correct at all (which I doubt in this case), their English translations refer to British English. Do a web search (Google, Bing, et al) for “past tense of plead,” and you’ll find pled or pleaded (with the latter preferred in a legal context; see https://jakubmarian.com/pleaded-guilty-vs-pled-guilty-which-one-is-correct/), and NOT “plead.”

Dr. Linguistica, the comic-book alias of Sam Cohen

In the last paragraph, Mr. Kraut wrote: “Remember, if you think you catch a mistake, drop me a line or let me know down in the comments.” OK, I will: The mistake wasn’t one of law, but of language, in the paragraph beginning “When translating it to something a little less legalese I stated that a person who was convicted or plead guilty to a state law misdemeanor…” Make that “…who was convicted or PLED [or pleaded] guilty…” Same for the verb lead (as in, “You can lead a horticulture, but you can’t make her think”), whose past tense is… Read more »