REVISE PISTOL DEFINITION

House Bill 4501 (Substitute H-1) as passed by the House

House Bill 5037 (without amendment) as passed by the House

Sponsor:  Rep. Douglas Geiss

House Bill 4502 (Substitute H-1) as passed by the House

House Bill 5038 (Substitute H-1) as passed by the House

Sponsor:  Rep. Kate Ebli

Committee:  Tourism, Outdoor Recreation and Natural Resources

First Analysis (5-11-10)

BRIEF SUMMARY:  House Bills 4501, 4502, and 5037 would amend the definition of "pistol" found in three Michigan statutes, effective January 1, 2010.  Currently, the term "pistol" in these statutes refers to a loaded or unloaded firearm that is "30 inches or less in length" or one that "by its construction and appearance conceals it as a firearm."  Under the bills, "30 inches or less in length" would be changed to "26 inches or less in length."

         Examples of firearms that gun dealers say could be affected by this definition change include AK-47s and AR-15s (civilian versions of military M16 semiautomatic rifles) with folding or adjustable stocks (provided that they measure between 26 and 30 inches long and are operable with the stock folded), and some AK-47s, Walther G-22s, and FN PS 90s with so-called bullpup configurations. 

Whether a firearm is classified as a pistol affects many things, including, among others, the minimum age for purchasing it from a dealer with a federal firearms license (FFL); whether a license is necessary to acquire it; how and where the firearm may be lawfully transported and carried; whether it may be sold by a pawn shop, and whether armor-piercing ammunition can be used in it.   

·              HB 4501 would amend the pistol definition in Public Act 342 of 1927.

·              HB 4502 would amend the pistol definition in the Michigan Penal Code.

·              HB 5037 would amend the pistol definition in the Revised Judicature Act. 

·              HB 5038 would allow people who lawfully owned firearms with a length of more than 26 inches but less than 30 inches on January 1, 2010, to continue to consider them "pistols" ─ under a purchase license, a concealed pistol license, or an exemption ─ after the new pistol definition took effect. 

House Bills 4501, 4502, and 5038 are all tie-barred, meaning that none would take effect unless all three bills were enacted into law.  House Bill 5037 is not tie-barred to the other bills. 

 

 

FISCAL IMPACT:

These bills would have an indeterminate fiscal impact on the state and local governments. 

THE APPARENT PROBLEM:

 

Some gun dealers say that Michigan's current definition of "pistol" should be revised because it classifies too many firearms as pistols rather than long guns.  Pistols have been more regulated than long guns in Michigan since at least 1927.  Current pistol restrictions include age, license, and residency rules.  For example, only a Michigan resident can purchase a pistol in this state and then must have either a purchase license or a concealed pistol license to do so.  A person must be at least 21 years old to buy a pistol from a dealer with a federal firearms license (FFL) (but may purchase a pistol from a private seller at age 18).  In contrast, rifles and shotguns more than 30 inches long can be purchased by 18 year olds (even from FFL dealers) and by residents of contiguous states.  No license is needed to buy a long gun.  It is illegal for pawnshops, second-hand dealers, and junk dealers to accept or resell pistols, but they may apparently sell long guns.  Moreover, the law against using armor-piercing ammunition applies only to ammunition used in pistols.  [Note: the section labeled Background Information contains a partial list of provisions in Michigan law that could be affected by the proposed change to the definition of pistol.]  

Generally speaking, a firearm's classification as a pistol under Michigan law depends entirely on its overall length:  a firearm with an overall length of 30 inches or less is a pistol, while one with an overall length of more than 30 inches is not.  (A firearm designed to look like something other than a firearm, such as a pen gun, is also considered as a pistol regardless of length.)  Because most traditional handguns are far shorter than 26 or 30 inches long (and thus would continue to be sold and regulated as pistols even if the definition were changed), and most traditional hunting rifles and shotguns (even those designed for children[1]) are longer than 30 inches (and thus would continue to be sold as long guns), the proposed change would appear to mainly affect military-style carbines and rifles between 26 and 30 inches in length that have been designed to be more compact or concealable either by having a foldable or collapsible stock or a so-called "bullpup" configuration, meaning that the action and magazine is placed behind the trigger.  Examples provided by dealers of firearms with a length between 26 and 30 inches include some AK-47s and AR-15s (civilian versions of the military M16 semiautomatic rifle) with folding or adjustable stocks[2], and some AK-47s, Walther G-22s, and FN PS 90s with bullpup configurations. 

Although some gun dealers would like to see the pistol definition changed, some gun owners, primarily concealed pistol licensees who like to carry military-style firearms with them in their vehicles, want to retain the current definition.  The benefit of the current definition, they say, is that it allows concealed pistol licensees to carry a folding-stock or bullpup AK-47 or any other firearm with a length of 30 inches or less (so long as possessing or carrying or the firearm or its ammunition was not illegal under any state or federal law such as the federal and state laws regarding short-barreled shotguns and rifles[3]) as a concealed "pistol" under a concealed pistol license. 

Under the proposed change to Michigan's pistol definition, any firearm between 26 and 30 inches in length that was no longer considered a pistol would have to be transported under the rules that apply to long guns (e.g., unloaded and out of reach). Addressing the concerns of gun owners who want to carry non-traditional "pistols" under a concealed pistol license, House Bill 5038 would allow a person who lawfully owned a firearm measuring between 26 and 30 inches before January 1, 2010 to continue to carry it as a "pistol" after the new definition of pistol took effect.

THE CONTENT OF THE BILLS:

House Bill 4501 (Substitute H-1)

 

"Pistol" definition.  Section 1(e) of this act (MCL 28.421(e)) defines the term "pistol" as "a loaded or unloaded firearm that is 30 inches or less in length, or a loaded or unloaded firearm that by its construction and appearance conceals itself as a firearm."  The bill would change "30 inches or less" to "26 inches or less." 

 

"Firearm" definition.  Section 1(b) of Public Act 372 of 1927 (MCL 28.421(b)), defines the term "firearm" as follows: 

"Firearm" means a weapon from which a dangerous projectile may be propelled by an explosive, or by gas or air.  Firearm does not include a smooth bore rifle or handgun designed and manufactured exclusively for propelling by a spring, or by gas or air, BB's not exceeding .177 caliber.  [Emphasis added.]

The bill would change "BB's" to "BBs," with no apostrophe, a change that does not appear to be substantive.

Tie-bar.  House Bill 4501 is tie-barred to House Bills 4502 and 5038, meaning that it will not take effect unless both of those bills are also enacted into law. 

House Bill 4502 (Substitute H-1)

House Bill 4502 would make the same changes to the definitions of the terms "firearm" and "pistol" in the Michigan Penal Code.  It would also make a corresponding change in a section that deals with sales of firearms longer than 30 inches, such as certain shotguns and rifles, to minors. 

"Firearm" definition.  In Section 222(d) of the Code (MCL 750.222(d)), in which the term "firearm" is defined, the bill would change "BB's" to "BBs."

"Pistol" definition.  In Section 222(e) of the Code (MCL 750.222(e)), in which the term "pistol" is defined, the bill would change "30 inches or less" to "26 inches or less." 

 

Long gun sales to minors.  Section 223(2) of the Penal Code (MCL 750.223(2)) makes it a misdemeanor for a person to knowingly sell a firearm more than 30 inches long to a person under 18 years of age.  The bill would change "30 inches" to "26 inches," making it a misdemeanor to sell a firearm more than 26 inches long to a minor. 

The penalty for a violation of Section 223(2) would remain the same:  imprisonment for not more than 90 days, or a fine of not more than $500, or both.  A second or subsequent violation would remain a felony punishable by imprisonment for not more than 4 years, or a fine of not more than $2,000, or both.  It would remain an affirmative defense to prosecution under this section that the seller asked to see and was shown a driver's license or state-issued identification card showing that the purchaser was at least 18 years old.[4]

Tie-bar.  House Bill 4502 is tie-barred to House Bills 4501 and 5038, meaning that it will not take effect unless both of those bills are also enacted into law. 

House Bill 5037

House Bill 5037 would change the definition of "pistol" in the Revised Judicature Act of 1961 (MCL 600.2951), effective January 1, 2010, from a firearm, loaded or unloaded, that is 30 inches or less in length to one that that is 26 or fewer inches long.   (As in current law, a "pistol" would also include a firearm that does not look like a firearm because of its construction and appearance.) 

The bill would also do the following things: 

·                                Revise the federal law references contained in the definition of the term "approved signaling device" (a pistol approved by the Coast Guard for use as a signaling device under specified federal regulations).

·                                Revise the wording of a subsection concerning strict liability for an injury or property damage caused by an approved signaling device if the person using the device did not have a reasonable belief that its use was necessary for the safety of persons on water or in an aircraft emergency situation. The words "emergency situation" would be removed.

House Bill 5038 (Substitute H-1)

As reported from committee, House Bill 5038 would amend Public Act 342 of 1927 to allow a person who lawfully owned, possessed, carried, or transported a firearm 30 inches or less in length as a pistol before January 1, 2010, under a license issued under Section 2 (purchase license) or Section 5b (concealed pistol license) ─ or an exemption under either of those sections ─ to continue to own, possess, carry, or transport it as a pistol after that date.  Further, such a person could continue to own and carry this type of firearm as a pistol under a subsequent license renewal.  

The bill would take effect on January 1, 2010.  It is tie-barred to House Bills 4501 and 4502, meaning that it will not take effect unless both of those bills are enacted into law.

MCL 28.423

BACKGROUND INFORMATION:

 

The following is a partial list of provisions in Michigan law that appear to distinguish between pistols and other types of firearms and thus could be affected by the proposed change to the pistol definition: 

·                    A license is generally required to purchase, possess, carry, or transport a pistol (ether a purchase license (MCL 28.422(1) or a concealed pistol license (MCL 28.422(2)).  A license is not needed to purchase a long gun.

·                    The minimum age for purchasing a pistol from an FFL dealer is 21 under MCL 28.422(3)(b) (but is only 18 for purchasing a purchasing a pistol from a unlicensed seller or for purchasing a long gun from either an FFL dealer or an unlicensed seller).

·                    A concealed pistol licensee must fill out a sales record after acquiring a new pistol, but not after acquiring a new long gun.  (MCL 28.422a(2))

·                    Certain chemical analysis provisions only pertain to persons carrying a concealed pistol under a CPL.  (MCL 28.425k)

·                    Only a concealed pistol may be carried by a concealed pistol licensee in the places listed in MCL 28.425o.

·                    Only a legal resident of Michigan, as defined in Michigan law, may purchase a pistol in Michigan with a purchase license.  (MCL 28.422(3)(c)) In contrast, a Michigan resident may purchase a rifle or shotgun in a contiguous state, and a resident of a contiguous state may purchase a rifle or shotgun in Michigan under Public Act 207 of 1969. (MCL 3.111-3.112))

·                    It is a misdemeanor to knowingly sell a firearm more than 30 inches long (i.e., a long gun) to a person under the age of 18 under Section 223(2) of the Michigan Penal Code (MCL 750.223(2) (As described above, House Bill 4502 would change 30 inches to 26 inches in this provision.)

·                    Concealed pistol licensees must carry their CPL and driver license or Michigan identification card with them whenever they carry a concealed pistol and must disclose the existence of a concealed pistol on their person or in their vehicle when stopped by a peace officer.  (MCL 324.425f) 

·                    A concealed pistol licensee may carry a concealed pistol in an area frequented by game without a hunting license.  (MCL 324.43510(2))

·                    A pistol may not be sold by a pawnbroker, second-hand dealer, or junk dealer (as defined in Public Act 350 of 1917, MCL 445.401 et seq.) under MCL 750.229. 

·                                                          Under Section 227d of the Michigan Penal Code,MCL 750.227d, it is a misdemeanor to transport or possess a firearm (other than a pistol) in a motor vehicle or other vehicle designed for land travel, unless it is unloaded and is one or more of the following:  (1) taken down, (2) enclosed in a case, (3) carried in the vehicle's trunk, or (4) inaccessible from the interior of the vehicle. 

·                    A prosecution for carrying a concealed pistol in violation of MCL 750.227 does not require proof that the person was carrying a concealed pistol with "unlawful intent," whereas a prosecution for carrying a firearm with "unlawful intent" under MCL 750.226 does requires proof of unlawful intent, and is therefore more difficult case for prosecutors.  See People v. Smith, 393 Mich. 432 (1975).]

·                    The definition of armor-piercing ammunition in MCL 750.224c refers to certain types of ammunition that may be used in a pistol. 

ARGUMENTS:

For:

Changing the definition in state law of "pistol" would allow more firearms ─ primarily military-style carbines, shotguns, and rifles between 26 and 30 inches long ─ to be sold as long guns rather than pistols.  Buyers and sellers of this type of firearm would no longer need to comply with pistol purchase requirements (including age, license, and residency requirements), simplifying matters for licensed gun dealers, gun show vendors, private sellers, and gun purchasers.  People who generally dislike any restrictions on who may buy or sell guns or licensing requirements would presumably welcome this change.

Response: 

Is it a good idea to allow the shorter military-style carbines and rifles between 26 and 30 inches long (e.g., folding AK-47s and bullpup FN PS 90s, if they are otherwise legal) to be sold without a license, making it easier for criminals or mentally-ill people to obtain them, especially from unlicensed sellers?  If a firearm is no longer considered a pistol, no license is needed to buy it.  If no license is needed to buy it, no background check will be done on the buyer if the firearm is purchased from a private seller.  (Local police or sheriffs perform background checks on every applicant for a purchase license or a concealed pistol license (whether an initial CPL or renewal)).  The license requirement also forces the applicant to affirm under oath that he or she is not disqualified from owning the firearm because of a criminal background, mental illness, or other disqualifying factor. Licensing, eligibility affirmations, and background check requirements are the principal mechanisms in Michigan law to try to keep firearms out of the hands of criminals, the mentally ill, and other disqualified persons.  Many people, even if they strongly support the right to own guns, do not wish to see guns in the hands of such individuals. 

Is it a good idea to allow pawn shops, second-hand dealers and junk dealers to start selling additional types of firearms, such as folding-stock AK-47s and FN PS 90s between 26 and 30 inches long, that they are currently prohibited from selling?

Is it a good idea to allow armor-piercing ammunition to be used in more types of firearms?  The law against this type of ammunition only applies to "pistols," so removing some firearms from the pistol category would apparently allow armor-piercing ammunition to be used in them.  

Is it a good idea to allow more sales of the shorter military-style weapons to buyers from out of state, particularly in light of the growing concern about interstate arms trafficking to Mexico?  Some people say that some firearms in the 26-to-30 inch long category, such as FN PS 90s (overall length between 26 and 27 inches) are highly sought after by persons smuggling guns to Mexican drug organizations.[5] 

For: 

To the extent that the current "pistol" definition classifies hunting rifles designed for young children as pistols, rather than rifles, the bills would correct this problem.  

Response: 

This does not appear to be a real problem.  Most, if not all, commercially-available youth-model shotguns and rifles have an overall length of more than 30 inches.  For example, the Crickett and Chipmunk youth hunting rifles and shotguns made by Keystone Sporting Arms, LLC, are all longer than 30 inches and thus are already sold as long guns, not pistols, with no license required.  The bills appear to be aimed at relaxing the rules governing the sale of military-style carbines and rifles, such as folding-stock AK 47s and bullpup FN PS 90s, not youth-sized hunting rifles.

 

For: 

Some people say that Michigan is the only remaining state that distinguishes between pistols and long guns based on overall length of 30 inches or less, and that the federal government and all of the other states have moved to a 26-inch cutoff.  The bills, they say, will bring Michigan's law into line with federal law and laws of the other states.

Response:

While is true that Michigan's current pistol definition is unusual, it is not true that the federal government and all other states have moved from a 30-inch to a 26-inch overall length dividing line between pistols and long guns.  For example, the overall length of a firearm (whether 30 or 26 inches) plays no part in the federal definition of the term "handgun" under the Gun Control Act of 1968, 18 USC 921(a)(29).  Under that act, a "handgun" is a firearm with a short stock and that is designed to be held and fired by the use of a single hand, and any combination of parts from which this type of firearm can be assembled.  Federal regulations (27 CFR Part 478) define the term "pistol" as:

A weapon originally designed, made, and intended to fire a projectile (bullet) from one or more barrels when held in one hand, and having (a) a chamber(s) as an integral part(s) of, or permanently aligned with, the bore(s); and (b) a short stock designed to be gripped by one hand and at an angle to and extending below the line of the bore(s)." 

Rather than defining what is or is not a handgun or a pistol, 26 inches is the cutoff under federal law ─ as it is in Michigan law ─ between firearms classified as so-called "short-barreled" or "sawed off" rifles or shotguns and those that are not.[6]  Short-barreled rifles and shotguns are ones with an overall length under 26 inches (and, for rifles, a barrel under 16 inches long, and for shotguns, a barrel under 18 inches long).  Short-barreled rifles and shotguns are illegal under Michigan law (MCL 750.222) using the same barrel length and overall length cutoffs as in federal law, and the bills do not amend the short-barreled rifle and shotgun definitions in any way.[7]

Nor is it accurate to say that all other states have moved from a 30-inch cutoff to a 26-inch cutoff for what is a pistol.  State laws vary widely as to whether and how pistols or handguns are regulated.  Many states define pistols or handguns based on barrel length (barrel length under 16 inches or 12 inches are common variations), rather than overall length as Michigan does.  Some states define pistols or handguns based exclusively on characteristics as under federal law.  For example, the Ohio definition of "handgun" mirrors the federal definition.  Rules about purchasing, licensing, possession, or carrying that result from a firearm's classification vary widely as well.  The proposed change to Michigan's pistol definition would make some firearms easier for gun dealers to sell (because age, licensing, residency and other rules would be relaxed) but it will not make Michigan pistol law conform to federal law or to a uniform 26-inch pistol definition supposedly adopted by all of the other states. No such uniformity exists.

For:

Supporters of the bills say that the proposed change to Michigan's pistol definition would make it less likely that someone would fail to comply with Michigan law when moving here or when modifying a firearm.  When moving here from another state or when modifying a firearm in a way that changes it from a long gun to a pistol under Michigan law, some people are apparently not aware that they may now need a license for the firearm.

Response: 

Firearms laws vary widely from state to state.  It would be foolish for anyone to bring a firearm into Michigan (or any other state) without inquiring about applicable laws.  Whether the line is drawn at 30 inches or 26 inches, some people won't bother to learn about or comply with Michigan's firearms laws. Nor should anyone modify a firearm (and risk a felony conviction) without making sure that the firearm as modified will be legal under all applicable federal and state laws, including rules against short-barreled shotguns and rifles, fully-automatic machine guns, armor-piercing ammunition, and many other things.

Against: 

Some gun owners, especially concealed pistol licensees, are concerned that the bills will narrow the types of firearms that they say they are allowed to carry loaded in their motor vehicles.  Concealed pistol licensees say that they, unlike other gun owners, are allowed to carry loaded pistols in their motor vehicles within easy reach, but that they must transport their rifles and shotguns unloaded and out of reach.  If their legal firearms between 26 and 30 inches long were no longer classified as pistols, some of their non-traditional "pistols" ─ such as 26-to-30 inch folding stock AK-47s and FN PS 90s ─ would have to be transported unloaded and out of reach, as are other rifles and shotguns.  Some gun owners are upset about the proposed change to the definition of pistol because it might prevent them from carrying their favorite firearm as a loaded concealed pistol under their CPL. 

Response: 

Assuming for the sake of argument that concealed pistol licensees are currently allowed to carry these firearms loaded in their vehicle, is it necessary to preserve the legality this practice?  Do private citizens really need to carry loaded folding-stock or bullpup AK-47s (if 30 inches or less in length) with them while they drive? Even if 26-to-30 inch military-style firearms were no longer allowed to be carried as pistols, a concealed pistol licensee could presumably still carry one or more loaded traditional handguns in the passenger compartment of the vehicle (and any number of unloaded long guns in the vehicle's trunk) while driving.  Shouldn't that be enough for the personal protection of any private citizen?  

 

For: 

To satisfy this subset of gun owners, a grandfather bill has been added to the bill package (HB 5038) to allow people who lawfully owned or carried a firearm between 26 and 30 inches long as a pistol under a purchase license, a concealed pistol license, or an exemption, to continue to do so.  HB 5038 would allow people who lawfully owned such firearms on January 1, 2010, to continue to carry them as "pistols" even after the new pistol definition took effect.

Response::

Some gun owners are opposed to changing the definition of pistol, even with the grandfather bill (HB 5038) added to the package, because that bill would only allow them to continue to carry as a pistol a 26-to-30 inch long firearm already owned as of January 1, 2010.  They could not buy a new one to carry as a pistol, and people who moved to Michigan after January 1, 2010, or who got their concealed pistol license after that date could not carry as a pistol a 26-to-30 inch firearm.

Against:
The grandfather bill (HB 5038) would be very difficult to enforce.  For example, during a routine traffic stop, would a law enforcement officer be able to determine whether a person carrying a 26-to-30 inch firearm had obtained a license for it or qualified for one of the many exemptions to licensure requirements by January 1, 2010?  Further, to the extent that there are unsettled questions about whether certain firearms are lawful to register and carry as pistols, it could be extremely difficult for both law enforcement officers and gun owners to figure out which gun owners could lawfully carry 26-to-30 inch firearms as pistols.  Firearms law is already very complex because both federal and state laws must be considered and some firearms that appear to meet the technical definition of a pistol under Michigan law might be illegal under other provisions of federal or state law.  The grandfather bill will make matters even more confusing. 

Against: 

One witness expressed concern about the mechanics of transferring a firearm purchased as a pistol to a new owner for whom it would be considered a long gun.  The seller would be listed in pistol records as the firearm's owner.  How would the seller get the firearm out of his or her name? 

 

POSITIONS:

The Department of State Police has a neutral position on the bills as passed the House. 

On 3-17-09, representatives of the Michigan Association of Firearms Retailers testified in support of House Bills 4501 and 4502, as introduced, and a representative of the Michigan Coalition for Responsible Gun Owners expressed a neutral position on House Bills 4501 and 4502, as introduced, but we have been unable to confirm the positions of these groups on the bills as passed the House 6-17-09. 

                                                                                           Legislative Analyst:   Shannan Kane

                                                                                                  Fiscal Analyst:   Jan Wisniewski

■ This analysis was prepared by nonpartisan House staff for use by House members in their deliberations, and does not constitute an official statement of legislative intent.

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