Sawed-Off Shotguns

United States v. Modina Lim, No. 05-2419 (April 14, 2006): Mr. Lim entered a conditional plea to possession of an unregistered sawed-off shotgun (26 U.S.C. sec. 5861(d)). He had several constitutional challenges to the statute. The Court easily rejected the claim that the offense was beyond Congress' power to tax, just as it rejected the claim that the registration requirement ran afoul of the self-incrimination clause of the Fifth Amendment.

More interesting is the claim that the statute is vague. Section 5845(a)(2) of Title 26 defines a sawed-off shotgun as a shotgun with an overall length of less than 26 inches or a barrel of less than 18 inches. Mr. Lim complained that the statute provides no definition of "barrel" and no statutory direction on how to measure a barrel. The Court relied heavily on United States v. Powell, 423 U.S. 87 (1975), which held there was nothing vague about proscribing the mailing of a firearm "capable of being concealed on the person." Presumably, if a statute as vague as this can pass muster, almost anything else will pass. However, the Court did not comment on the key difference between the statute in Powell and the statute in Mr. Lim's case. The offense in Powell requires knowledge, but the offense in the instant case does not. The Court also pointed to a regulation, 27 C.F.R. sec. 479.11, that sets out a protocol for measuring barrels and the over-all lenghts of guns. The Court held that a regulation can save a statute from being vague. The Court did not quote the language of this regulation. Had it done so, it might have seriously undermined its argument. The regulation may make some sense to someone who knows about guns, but it is not enlightening to others. It is generally agreed that a statute must be intelligible to the public at large, not a special segment of the public. The same should hold true for regulations that are offered to fend off claims of statutory vagueness.