Drafting Error Causes Confusion over Shockwave Fix

[UPDATE: Ohio Senate introduces emergency fix for Shockwave error]

We've been getting some questions about legislative language intended to make the Mossberg Shockwave and similar firearms legal in Ohio. Buckeye Firearms Association attorney Sean Maloney, along with the Attorney General's office, worked on the language several years ago. However, it didn't find its way into a bill until HB 228, which was passed in the last few days of December.

HB 228 sought to clean up a number of issues that have burdened gun owners in Ohio for a long time. Many anti-gun groups, Ohio prosecutors, and even then-Governor Kasich opposed the bill and did their best to kill it. Kasich vetoed the bill when it arrived at his desk, and both the House and Senate voted to override.

Unfortunately, while the correct language to fix the Shockwave issue was in the bill, an editing error cropped up in the final version. Essentially, a section of text that is supposed to be in one place was inadvertently moved to another place, causing confusion.

So what happened and what is being done about it?

The Shockwave Issue

The problem with the Shockwave and similar firearms is that while they are legal under federal law, they are illegal under Ohio law. Sean and I wrote an article explaining the Shockwave problem back in May 2018.

Here's how Sean explained it:

2923.11(F) of the Ohio Revised Code provides: "(F) Sawed-off firearm means a shotgun with a barrel less than eighteen inches long, or a rifle with a barrel less than sixteen inches long, or a shotgun or rifle less than twenty-six inches long overall." Emphasis added.

The Mossberg Shockwave has a barrel length of 14". Accordingly, with a barrel of less than 16" long, it is considered a "Sawed-off firearm" under Ohio Law. In Ohio, there is no barrel length exception, even with an overall length of 26” or greater. So how is it legal in some states?

Following BATF regulations; if, at the factory during the manufacturing process, a brand-new receiver is fitted with a pistol grip first instead of a shoulder stock, it's considered a Pistol Grip Only (PGO) firearm. Due to the manufacturing process used to build the gun, it doesn't fall under the purview of NFA regulations. Instead, the definitions that apply are found in the Gun Control Act of 1968 (GCA). Under these regulations, the Shockwave is legally considered a “firearm,” not a sawed-off-firearm.

According to the GCA, if the overall length of that firearm, with the pistol grip and barrel installed, is greater than 26", then the barrel can legally be shorter than 18". In the case of the 14" barrel Mossberg 590 Shockwave, the Raptor bird's head grip gives the gun an overall length of 26.32". That makes it a firearm. Although the BATF recognizes it as a "legal" shotgun; under the Ohio Revised Code, it does not meet the requirements.

NOTE: Although the federal government says it's a gun that can be purchased by qualified buyers over the age of 21, some states, like Ohio, have regulations in place banning it and other guns like it.

Unfortunately, for those of us who reside in Ohio, the State of Ohio does not recognize the BATF definition of a "Non-Regulated Shotgun" related to the manufacture and sale of PGO shotguns.

As to a definition of shotgun, that is omitted from the revised code. Similarly omitted is the definition of a rifle.

However, Ohio Courts routinely turn to common use definitions and use those when a statutory definition is lacking. For instance, the U.S. Code definition of shotgun everyone points to in order to argue it isn't a shotgun would be given great weight. The Ohio Supreme Court has certainly upheld the convictions.

The law will not be interpreted into an absurd result. The common use of shotgun in Ohio is a smooth bore (probably of less than 60 caliber) without regard to shoulder firing or overall length.

So, it boils down to Ohio law conflicting with federal law. This is not unusual. A similar situation exists regarding medical marijuana, where Ohio has legalized it and federal law still makes it illegal.

The Mistake by Legislative Services Commission

The legal language to fix the Shockwave issue appeared as one of many improvements in HB 228. Other issues, such as shifting the burden of proof to prosecutors in cases of self-defense, strengthening preemption laws to deter cities from passing their own gun ordinances, and recognizing the Concealed Handgun License as sufficient I.D. during a law enforcement stop, are all dealt with effectively in the bill that was passed.

However, the language dealing with the Shockwave fix included an error. That error consisted of a section of text moving from one section to another. How did that happen?

Legislative Services Commission (LSC) is the group that puts legislators' ideas for bills to paper. They draft bills. They draft amendments. They are the people responsible for turning legislative concepts into codified law.

In the final days of the 2018 lame duck session, there were many, many bills and versions of bills and amendments being drafted on many different issues. Kasich and Democrats were firing off amendments in an attempt to kill HB 228. Time was running out before legislators left for the holidays. And the Statehouse was filled with lobbyists, protestors, and others adding to the chaos. The situation was ripe for human error. In the confusion, when LSC drafted the last in a long line of versions of HB 228, the staff put a chunk of text in the wrong place. Simple as that.

Despite the wild conspiracy theories being pushed by some, there was no evil plan. It was not legislators or the NRA or BFA secretly sabotaging the bill. It was just a simple drafting error. And no one caught it until the bill had passed, including all the people now floating the conspiracy theories.

This is not an unusual occurrence. Drafting errors happen in legislation just as they happen in news stories or any other written document.

BFA identified this error and immediately brought it to the attention of LSC and leadership in the General Assembly. LSC admitted to making the error. And leadership began discussing how to correct it.

What is the Result of the Error?

BFA works very hard to make Ohio laws better for gun owners. So we are obviously upset by this situation. We worked for several years to fix the Shockwave problem and took the lead in this effort.

In addition to discussing this with LSC, we've talked to leaders in the Statehouse, the NRA, and multiple attorneys. They all agree that, while frustrating, the error is unlikely to create any real-world problems for gun owners other than postponing the intended fix for the Mossberg.

Despite the Internet rumors and fake news being perpetrated online about how this error will instantly outlaw all long guns in Ohio, this is simply not going to happen. LSC, the NRA counsel, and others agree that none of the outlandish rumors are true. In fact, such an interpretation is quite a stretch and would be unconstitutional regardless.

Interestingly, we discovered that many of the most outrageous posts on Facebook are from fake accounts. It boggles the mind that some people would go to such lengths to gin up conspiracy theories about an issue like this. However, that's what happens on social media and in forums. Please be careful about who you trust when it comes to legitimate information about important issues. The more outlandish it sounds, the more likely it is to be misleading or just plain false.

But make no mistake, everyone agrees LSC made the error. And everyone agrees the error needs to be fixed ASAP.

How Will This Error Be Fixed?

In short, since the error was voted into law, it will take legislation to vote the fix into law and have the original Shockwave language in Ohio Revised Code.

As you read this, leaders in the General Assembly are discussing the best way to accomplish this. Should it be a stand-alone bill? An amendment in another bill? A part of the Ohio budget to be passed in a few months? An emergency action?

Naturally, we would like to see legislators turn our original legislative fix into a bill and move it through the legislative process in short order.

What we can tell you is that this is a high-priority issue, we are personally meeting with legislators, and we hope to see a fix as soon as possible. And we will keep you informed about the progress of this fix.

[UPDATE: Ohio Senate introduces emergency fix for Shockwave error]

Dean Rieck is Executive Director of Buckeye Firearms Association, a former competitive shooter, NRA Patron Member, #1 NRA Recruiter for 2013, business owner and partner with Second Call Defense.