BATFE and "Constructive Intent"


PDA






Kind of Blued
April 17, 2008, 01:51 AM
I've heard alot about this, but nobody has ever bothered to share any evidence, cases, text, or written law on this "charge". The idea that it is illegal for a civilian to merely have the capacity and the means to do something illegal is something that I find impossibly stupid and basically antithetical to everything that America is supposed to be. Then again, it is the ATF, and alcohol, tobacco, firearms, and explosives are right there after baseball and jazz if you ask me.

Anyway, I am wondering if anyone can give me something more than hearsay on the validity of "constructive intent".

I would like to build an SBR out of an AR pistol, adding a buttstock after I register the lower as an SBR (on a form 1 I believe).

However, I would like to understand "constructive intent" clearly to make it more convenient for me. I know there is a "play it safe" path, but the law and I get along just fine as long as I understand it. I assume SOMEONE must have sent a letter to the BATFE at some point asking these questions.

Questions that I have:

Can I own the AR pistol and the collapsible stock simultaneously as long as I don't install the stock until I get my tax stamp? (I gather that this is legal from the text, however, the spook that is "constructive intent" throws a moneywrench in this logical agreement.)

Can I own the AR pistol and order a stock and have it shipped to a relative's house so it never comes within 15 miles of my AR pistol?

Can I have them both as long as I can prove that I did not have "intent to construct" an illegal weapon?

Without knowing the answers to these, I assume it is, ironically, perfectly legal to have the AR pistol in my safe with two other ARs with buttstocks which could be affixed to the pistol. Should I be worried that they will intermingle themselves into an illegal weapon while I'm at work in the same way that "guns kill people" and "just go off" all the time?

I appreciate any help on this confusing (for me) subject.

If you enjoyed reading about "BATFE and "Constructive Intent"" here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!
garymc
April 17, 2008, 03:23 AM
I think you are liable for prosecution for writing what you have written.

MikeEvans
April 17, 2008, 03:50 AM
What about if you had a shotgun and a hacksaw in the same house?

nalioth
April 17, 2008, 03:55 AM
So long as you don't have the buttstock on the pistol until you have your tax stamp, you should be fine according to the law.

Then again, if you are worried about a "constructive intent" charge, you've done stepped off into the big doo-doo somewhere else.

Riss
April 17, 2008, 04:03 AM
Constructive possession more so applies to if you have the AR pistol, and do not have an AR to install the buttstock onto. In that case you would have all required parts to make a short barreled rifle and no "legitimate" use for the stock. This is the same as if you had a full length AR, a shorty upper, and did not have the AR pistol to install the shorty upper onto. You would have the makings for a SBS and no reason to possess a short upper. For all intents and purposes the Constr. poss. section is meant to be able to add more charges onto someone that has already broken the law in some manner. If you are within the law on everything else, and have ordered the other parts you need for a rifle simply having the buttstock would not really be an issue. You can then show intent to be compliant with the law. On the other hand, giving someone else the part that you do not need at the moment, and having them keep it for a little while would not hurt in the least.

Zoogster
April 17, 2008, 07:08 AM
Constructive possession simply means you have "dominion or control" of something you do not possess. For example if storing your illegal machinegun at your buddies house even though only he has actual possession of it.

Or he has one and says you and 5 other people can come use it any time, you all agree and have access to it and a key to the place, even if you never see it.
You would still all have constructive possession over it because you excericise some control over the item and could retrieve it at any time. So you have control over the item, and while not technicaly in possession you are in "constructive possession".

The same would go for anything else illegal. It is often used to prosecute people in a home that has drugs even if the drugs are only owned or possessed by one person.
If they can show multiple people had access to or some level of control over the drugs or the home they were in, even if owned by someone else, they had constructive possession even if never actual possession.

If you own it or have some control or access to it, but do not actualy have possession of it, then you can still have "constructive possession" rather than actual possession.
That allows you to be charged the same as if you actualy possessed it even though you didn't when it was siezed by authorities.
So one gang member busted for example can have many members charged for a guns or drugs even if only one residence actualy contained the items and the gang members are not even present. If they all had a level of proven control over the property, then they had constructive possession even miles away.

Constructive possession has nothing to do with building anything.

"Constructive intent" is an entirely different legal term than "constructive possession".
Constructive intent also has nothing to do with building or "constructing" something.
Constructive intent applies when someone intentionaly does one action which is wrong or illegal and has an unexpected outcome that is still in line with the wrong intent.
So if you for example intended to murder someone, and shot at them but missed and hit an innocent person you were not trying to hit and they died. Your actual intent was not to harm that person, but your constructive intent since it was to cause the death of someone extends to the person you accidentaly killed. So rather than being a lesser homicide charge, it would still be the murder as if it happened to the actual intended victim. So if you planned to kill the intended victim but unexpectedly killed the innocent person, you would still be guilty of pre meditated murder on the unintended victim as if it happened on the intended victim because of "constructive intent".

As that applies to illegal possession of arms can be complicated. If your are only trying to have one thing not allowed maybe something minor by law or you acknowledge may not be legal, and you instead accidentaly have something else that could be used for other illegal purposes, you can still be shown to have constructive intent.
For that reason someone simply breaking one law could be charged with another based on intent even if they did not intend to do it because thier illegal or wrong intent on one related thing is extended.
That might be done to give you a related charge with greater time even if it is only shown your are likely guilty of another.

So if you have parts useful for several illegal purposes and obtained or possess them with the intent (or the prosecutor claims) to possibly use them for one illegal purpose and several other illegal things could also have been done, then constructive intent could be applied in some situations.

Notice the definition of "constructive intent" has nothing to do with constructing something, the illegal offense in that case would just have to do with construction of something coincidentaly.

I imagine the term is just as useful for confusing jurors though who would be trying you at the direction of the court. :neener:



It is all complex. However lets use your example:

Can I own the AR pistol and order a stock and have it shipped to a relative's house so it never comes within 15 miles of my AR pistol?
You would still have constructive possession over the stock because you plan to excercise dominion or control over it even if you are 200 miles away from it. You are still the owner, and you still have the say in where it goes and what is done with it.
Now whether it is legal for you to have both the stock and the AR pistol is a completely seperate issue altogether because "constructive possession" has nothing to do with constructing something!
If they attempt to make a case you are trying to build an illegal item that is possession of an unregisted NFA weapon.
You would argue that you don't have possession of the item, and they would argue that you have constructive possession of it miles away at your relatives home.
However if it is legal for you to have both then it is legal for you to have it yourself or for someone to have it for you miles away, because both are considered you in possession of it, one is just constructive possession.

It is easier to understand as it relates to something like drugs, because you wont be building anything :neener:
If you purchased some illegal drugs and had your family member that lives in another home pick them up and store them at his place you would still be in constructive possession of them.
He would be in actual possession and you would be in constructive possession. So you would both be in possession under the law even though only he possessed them. Make sense?

-C4-
April 17, 2008, 09:25 AM
I would also say its a no no. Best not to temp the ATF. It really wouldn't surprise me if they arrested and tried someone for constructive possession of a shotgun and a hacksaw.....

buzz_knox
April 17, 2008, 10:07 AM
The key question is whether there was a legitimate, lawful purpose for the items at issue. Absent that, ATFE can argue one can presume criminal intent.

There's no way one can presume that a person who owns both a hacksaw and a shotgun does so for the purpose of making a SBS. A person who owns a Glock and a Glock folding stock (which has no purpose but to turn said Glock into a SBR) has issues.

ATFE has "recommended" that if you own a registered SBR AR lower and other lowers that aren't registered as SBRs, you'd better have 16 inch uppers for each non-registered lower. That helps prevent the argument that you planned on illegally manufacturing an SBR.

Punkermonkey
April 17, 2008, 10:29 AM
I never really understood what the big deal is about SBS's and SBR's....

buzz_knox
April 17, 2008, 10:35 AM
I never really understood what the big deal is about SBS's and SBR's....

Politicians seeking to cut back on firearms ownership picked arbitrary lengths for barrels, and imposed a tax on owning anything below that level that was, at the time, sufficiently punitive to deter ownership. Enforcing that tax and hunting down those who didn't pay it employed gov't agents who were about to be unemployed due to the end of Prohibition, and thus kept official employment levels up during the Depression (transferring them from one form of dole to another).

That's the sole deal.

nalioth
April 17, 2008, 04:03 PM
If you're that worried about 'constructive intent', having other AR15s in the house could be considered 'intent' as well. What if you just had a notion to put your NFA shorty upper on an unregistered lower? The law is quite clear on this: So long as you don't have the two parts together, you're fine.

As I mentioned above, If the LEOs are in your house impounding your firearms, I suspect you've got bigger things to worry about than "constructive intent".

If you worry yourself to a heart attack, what fun are you having?

P.S. Do you think the thousands of Kalashnikov enthusiasts with AMD-65 (http://en.wikipedia.org/wiki/AKM-63) or Krinkov (http://world.guns.ru/assault/as03-e.htm) kits worry about "constructive intent"? Those particular AKs have sub-16" barrels.

No.

The alphabet gang has ruled that until you put the two parts together to make an illegal item, you're fine.

ArmedBear
April 17, 2008, 04:10 PM
Carbine stocks are pretty easy to find. Even here in California, where the AR is supposedly banned, I can drive down the street from my house and buy one at the store.

Why not wait until you have the stamp, and then buy the stock, if you're worried? Seems easy enough.

Historic Arms LLC
April 17, 2008, 05:52 PM
In that unless you have an "ostensible purpose"

[example: you have a registered machinegun or short barrel rifle, and have a spare upper with a barrel length of less that 16"]

If you do NOT have a legit "ostensible purpose", do not possess/control such items with a title I semi AR.

See also United States v. Santoro, 2007 WL 1720474 (11th Cir.) (a recent unpublished opinion holding that a disassembled Cobray semi-automatic pistol and shoulder stock had no other “ostensible purpose” aside from conversion to a prohibited short-barreled rifle and therefore constituted a firearm).

Len

Hkmp5sd
April 17, 2008, 06:18 PM
What if you just had a notion to put your NFA shorty upper on an unregistered lower? The law is quite clear on this: So long as you don't have the two parts together, you're fine.


Keep that thought in mind.

DEPARTMENT OF THE TREASURY
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS
WASHINGTON, DC 20226

MAR 29 2000

903050:GKD
3311

Dear Mr. :

This refers to your letter of January 22, 1999, requesting information on the legality of possessing a registered full auto AR15 and also possessing one or more semiautomatic pre-1994 assembled AR15 rifles. You appended a number of specific questions relating to this subject which will be answered in the order received.

1. Is it legal to own both?

There are no provisions under the Gun Control Act of 1968 (GCA) or the National Firearms Act (NFA) that prevent an individual from possessing an AR15 registered machinegun and one or more semiautomatic AR15 rifles at the same time.

2. If legal to own both, which spare parts for the registered gun can you also own?

Any weapon which shoots automatically more than one shot, without manual reloading, by a single function of the trigger meets the definition of a machinegun in section 5845(b) of the NFA. An AR15 rifle which is assembled with certain M16 machinegun fire control components, and which is capable of shooting automatically is a machinegun as defined.

The definition of a machinegun in section 5845(b) also includes any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person. Thus, an AR15 rifle possessed with separate M16 machinegun components can meet the definition of a machinegun, if the rifle shoots automatically when the components are installed.

The fact that a person lawfully possesses a registered NFA firearm does not grant authorization to possess additional non-registered firearms. A person who possesses a registered M16 machinegun and a semiautomatic AR15 and a separate quantity of M16 machinegun components could be in possession of two machineguns.

We advise any person who possesses an AR15 rifle not to possess M16 fire control components (trigger, hammer, disconnector, selector, and bolt carrier). If a person possessed only the M16 machinegun and spare M16 fire control components for that machinegun, the person would possess only one machinegun.

3. Is it legal to use the upper receiver off of the semi-auto AR's on the registered AR if they are different lengths and calibers than listed on the Form 4's?

Before changing the caliber of a registered machinegun you should notify the NFA Branch in writing of the proposed change.

4. Can you have several short barrel uppers (less than 16 inches) for the registered AR and still own semi-auto AR's?

The definition of a firearm in section 5845 of the NFA includes a rifle having a barrel or barrels of less than 16 inches in length. An individual possessing more than one short (less than 16 inches) barreled upper receiver for a registered AR15 machinegun along with one or more semiautomatic AR15 rifles would have under their possession of control an unregistered short barreled rifle, a violation of the NFA.

5. If you change the barrel length or caliber do I need to notify your office if the change is not a permanent one?

This question was answered under Question 3.

We trust that the foregoing has been responsive to your inquiry. If we can be of any further assistance, please contact us.


Sincerely yours,

[signed]
Edward M. Owen, Jr.
Chief, Firearms Technology Branch


http://www-2.cs.cmu.edu/afs/cs/user/wbardwel/public/nfalist/atf_letter90.txt

Hkmp5sd
April 17, 2008, 06:24 PM
Can I own the AR pistol and the collapsible stock simultaneously as long as I don't install the stock until I get my tax stamp? (I gather that this is legal from the text, however, the spook that is "constructive intent" throws a moneywrench in this logical agreement.)

Can I own the AR pistol and order a stock and have it shipped to a relative's house so it never comes within 15 miles of my AR pistol?

Can I have them both as long as I can prove that I did not have "intent to construct" an illegal weapon?


No. Per ATF, you would be in violation by having an unregistered short barreled rifle.

Yes. As long as you do not have possession of the stock and they do not have possession of an AR pistol, everything is fine.

No. Again, actual installation does not matter. If you own an AR pistol and have more AR shoulder stocks that you have actual AR-15 rifles, ATF says you are in violation.

nalioth
April 17, 2008, 06:27 PM
Keep that thought in mind.An individual possessing more than one short (less than 16 inches) barreled upper receiver for a registered AR15 machinegun along with one or more semiautomatic AR15 rifles would have under their possession of control an unregistered short barreled rifle, a violation of the NFA. Nowhere did I mention having an "extra" shorty upper laying around.

My point was that you can 'mix and match' any AR15 upper off of any AR15 you might have.

Are they gonna arrest you for having a Title 1 Colt AR15 and a legal SBR AR15?

Why not? You can put the SBR upper on the Colt any time you like. . . .

As I keep saying, if they are looking at "intent" charges, you've already crossed a line somewhere...

Hkmp5sd
April 17, 2008, 06:36 PM
Are they gonna arrest you for having a Title 1 Colt AR15 and a legal SBR AR15?


I hope not as I have a Colt AR-15 SP1 and a Colt M16A1 w/ 14.5" upper.

However, if the original questioner has exactly the same number of shoulder stocks as he has AR rifles, buying a shoulder stock and possession of the AR pistol would make him illegal per ATF. Therefore, "So long as you don't have the two parts together, you're fine." is not universally accurate.

cracked butt
April 17, 2008, 06:48 PM
The rules apply any way that the BATFE wants them to when they kick down your front door and start confiscating your stuff.

Don't expect reasonable actions or decisions from an organization with a taxing authority, unlimited power, and a 'napolean complex' when compared to other more legitimate .gov agencies.

nalioth
April 17, 2008, 07:00 PM
Therefore, "So long as you don't have the two parts together, you're fine." is not universally accurate. I've seen letters saying that it is accurate.

Post number 18 sums it up, and invalidates this entire thread. If they want you, they're gonna get you.

Don't give them an excuse to break your door down and gather up your stuff (as I keep pointing out).

Neo-Luddite
April 17, 2008, 07:02 PM
Why not just ASK the ATF what *it* thinks--I mean, hey, they WORK FOR Y-O-U! Send a nice note to the nice people, pick up the phone, that is what a citizen with a straight question does, right? We pay these folks to either 1) kick in doors or 2) engage in serving, protecting and answering questions. For the career Fed Gov employee--which is the safest and most sure route to a peaceful pension?

cracked butt
April 17, 2008, 07:18 PM
Why not just ASK the ATF what *it* thinks--I mean, hey, they WORK FOR Y-O-U! Send a nice note to the nice people, pick up the phone, that is what a citizen with a straight question does, right? We pay these folks to either 1) kick in doors or 2) engage in serving, protecting and answering questions. For the career Fed Gov employee--which is the safest and most sure route to a peaceful pension?


That's the way .gov is supposed to work and the way we expect it to, but I'm more cynical than that. Asking such questions of them about gray areas of the law that they have the leverage to push either way seems like a awefully good way to get their attention and make you a subject worth further watch. Its not entirely different than if a stranger came up to you at a park and asked if they could play with your children while promising not to bugger them.

Hkmp5sd
April 17, 2008, 07:23 PM
I've seen letters saying that it is accurate.


I've seen a letter saying a shoestring is a machinegun. :)

TexasRifleman
April 17, 2008, 07:26 PM
I've seen a letter saying a shoestring is a machinegun.

LOL me too. At least with that one they came back later and admitted that, shockers, maybe saying that anyone in possession of a shoestring was a felon was perhaps a bad idea :)

nalioth
April 17, 2008, 07:31 PM
I've seen a letter saying a shoestring is a machinegun. So all ATF letters (http://www.thehighroad.org/showpost.php?p=4413178&postcount=14) are bogus, now? Which ones do we believe? Which ones don't we?


Oops.

Kharn
April 17, 2008, 07:43 PM
The Supreme Court in 1992 stated in Thompson Center that as long as you had a legal use for all of the parts, you were not in violation of the NFA. But only having an AR pistol and a buttstock or any semiauto AR and M16 parts would be a violation if you did not have the proper paperwork.

Kharn

TallPine
April 17, 2008, 07:49 PM
Well, what if I have "Destructive intent" ??? :D

Hkmp5sd
April 17, 2008, 08:20 PM
So all ATF letters are bogus, now? Which ones do we believe? Which ones don't we?


I guess it depends on the day of the week, phase of the moon, Hillary's super-delegate count or last nights lotto numbers.

For some reason, ATF is not consistent in their rulings.



http://img.photobucket.com/albums/v495/Hkmp5sd/Shoestring2.jpg?t=1208477979

http://img.photobucket.com/albums/v495/Hkmp5sd/Shoestring3.jpg?t=1208478123

MechAg94
April 17, 2008, 08:44 PM
IMO, don't try to play games by intentionally trying to get around or bypass the law just because you are impatient to get the parts. That applies to parts or trying to build a "not-quite-a-machine-gun" to play around. If you do so, you may end up regretting it. I don't like the laws either, but I guess I am just cautious.

Kind of Blued
April 18, 2008, 03:19 AM
IMO, don't try to play games by intentionally trying to get around or bypass the law just because you are impatient to get the parts. That applies to parts or trying to build a "not-quite-a-machine-gun" to play around. If you do so, you may end up regretting it. I don't like the laws either, but I guess I am just cautious.

The point of this thread is not to intentionally "get around or bypass the law". The point is to pursue my hobbies with an absolute respect for the law first and foremost.

It is discouraging that it is nearly impossible to get a straight answer on what is illegal and what is not. Especially considering a huge organization with hundreds of people with hundreds of computers and millions of dollars can't get it together as well as some 18 year old kid in high school in Iowa that wants to legally put a new part on his rifle.

I'll just ask them myself. It seems the only "insurance policy" you can get to prove that you were acting legally to the best of your knowledgeis a letter in reply from the ATF with someone's signature on it.

TexasRifleman
April 18, 2008, 09:24 AM
It is discouraging that it is nearly impossible to get a straight answer on what is illegal and what is not. Especially considering a huge organization with hundreds of people with hundreds of computers and millions of dollars can't get it together as well as some 18 year old kid in high school in Iowa that wants to legally put a new part on his rifle.

The ATF doesn't "make" law though. They can only enforce laws on the books. If they give you legal advice they could always change their minds in court.

The only way you will get a real answer is to be put on trial and see what the jury tells you.

The letter you get from the ATF will be blurry at best and err on the side of caution, that's about all you can expect from them anymore.

That opinion that all shoestrings were considered machineguns was pretty embarrassing to them I suspect.

And look how long it took for them to notice it. During the time from Sep 2004 to Jun 2007 it was Tech Branches opinion that ANY shoestring 14 inches in length was a machinegun.

You sure you want their legal opinion? :)

Oh and make a note of when you send a letter to them. I bet you get the tax stamp back before you get a reply to your question :)

I asked tech branch what I thought was a simple question about a Registered Lightning Link once and it took them 5 months to reply to me.

Bubbles
April 18, 2008, 10:32 AM
Why not just ASK the ATF what *it* thinks--I mean, hey, they WORK FOR Y-O-U! Send a nice note to the nice people, pick up the phone, that is what a citizen with a straight question does, right? We pay these folks to either 1) kick in doors or 2) engage in serving, protecting and answering questions. For the career Fed Gov employee--which is the safest and most sure route to a peaceful pension?

These guys all tried that; didn't work, and cost them a lot of money.

Bill Akins/Tom Bowers: Akins Accelerator (http://www.freerepublic.com/focus/f-news/1752998/posts)

Historic Arms, LLC: BM-3000 (http://www.autochart.com/savageBM3000.htm)

Centerfire Systems & KT Ordinance (http://www.gunowners.org/a022207.htm)

As has been pointed out, ATF doesn't "make" laws, but they do make rulings and regulations that have the force of law, and the ATF can change these on a whim in addition to enforcing them. Hence the problem.

MechAg94
April 18, 2008, 11:41 AM
MDeViney, please don't take my comments the wrong way. I was thinking of a lot of other threads when I wrote that. My advice for you is to wait until you get your approval before buying parts.

Regarding other threads, it seems that some of the people who get on the wrong side of the ATF seem to be trying to make a gun act like a machine gun, but not be a machine gun, and then they get in trouble for having a machine gun. With the rules and law as vague as they are, you have to be careful not to fall on the wrong side of things.

cracked butt
April 18, 2008, 12:16 PM
These guys all tried that; didn't work, and cost them a lot of money.

Bill Akins/Tom Bowers: Akins Accelerator

Historic Arms, LLC: BM-3000

Centerfire Systems & KT Ordinance

As has been pointed out, ATF doesn't "make" laws, but they do make rulings and regulations that have the force of law, and the ATF can change these on a whim in addition to enforcing them. Hence the problem.


I knew it wouldn't take long for someone to validate my cynicism over the BATFE.

Zoogster
April 18, 2008, 04:26 PM
It is discouraging that it is nearly impossible to get a straight answer on what is illegal and what is not. Especially considering a huge organization with hundreds of people with hundreds of computers and millions of dollars can't get it together as well as some 18 year old kid in high school in Iowa that wants to legally put a new part on his rifle.

The problem is you asked the wrong question, used the wrong terminology, and asked about a legal term without a simple short answer.

If the question you asked was, "Can I have ___ while I have ____, here is what I want to do." The answer would be much easier because you would not need to be given answers to extra questions you asked.
No, you don't have a tax stamp yet, and possession of parts intended for creation of an NFA weapon even if you are planning to wait until legal to assemble it is possession of an NFA weapon.*

*with exceptions

Constructive intent, and constructive possession have nothing to do with building anything, guns or otherwise. Yet you asked about those terms and how they apply to gun ownership, further confusing the clear answer you wanted.
They are legal terms that apply to ownership or intent to a range of things under law and you are simply mislead by the "constructive" word in them.

You should not own parts that can allow you to assemble an illegal weapon unless they also allow you to assemble a legal weapon, and only if that is your intent.

The ATF is simply a regulatory agency, and you can't get a straight answer from them that will hold up in court on some issues.
Checking with them on a specific issue can be useful for business practices or as a short cut to current interpretation by the people that enforce the law, yet it is not a sure way to actualy understand the law.
There is enough grey area that the interpretation can change with the political climate and thier current budget.
So on many legal issues there is no clear answer, some things are legal and illegal. The akins accelerator is a good example. It was "legal", the ATF stated it was legal, and then it was illegal. No law changed, the ATF interpretation did.
Yet for it to have been determined illegal now, since no law has changed, that means it was always a machinegun and therefore always illegal possession of a machinegun, even when the agency interpreting the law said it wasn't. Legaly they do not make law, they just enforce it (in reality they do make law, since there is dozens of interpretations that can hold up in court).
So had they said it was legal, then arrested people for it without first declaring them illegal, that would still be perfectly legal, because the law never changed, so they were never legal from the start. In fact I don't know what the statute of limitations is for prosecution, but I would imagine the list of pruchasers could be charged and sent to prison for illegal possession of an unregistered machinegun if the ATF decided to do so. They don't have the authority to just declare someone immune from the law, so be saying it was legal the illegal status of it technicaly and legaly would not have changed.
So things can get quite confusing.
They don't legaly create law, so thier current interpretation of law is and always has been law (at least since the date of the law it is based on) since they do not really have legal authority to create new law. So if you do something considered legal, and then it was declared illegal later, technicaly it would have always been illegal because the law never changed, just the ATF's clearer understanding of it would have. :scrutiny:



Owning any item, legal or illegal, even if you store it miles away at a family member's home or a parked vehicle or a in a storage unit is still constructive possession of that item, whether it is a dog, a computer, or a gun part. Constructive possession is not a criminal offense, it is a type of possession. Constructive possession of something illegal to have is illegal constructive possession.
Since having the parts to build a weapon that is illegal with no legal use for them remains illegal, owning those parts stored in different places would still be "constructive possesson" no different than having them in front of you, not because "constructive possession" means you can consruct anything, but because you technicaly still possess an NFA weapon illegaly.
So people see the terms "constructive possession" a lot in cases involving illegal firearms and get confused about what it means. It just means you possessed something that was not present, and was like in your example stored at a family member's home.


If you possess the items which you can only use to make an illegal item you could be charged. Yet if you have an AR-15 that stock can also be used on, you have a valid legal purpose, until of course you mention you have it for use with your pistol once you got your stamp. That just was admission to illegal possession based soley on intent. You can have legal spare parts for legal weapons, millions do. Unless of course the ATF decides they are to build something which is an illegal use for them, then they are illegal.

If you are planning to make a legal SBR you should get the tax stamp ASAP to be legal.
You cannot get everything ready for the project because by being ready you will have broken the law. That is your question, and that is the answer. There is ways around the law by having the items in question legaly for a legal purpose, but because your intent is to use them on a weapon which you don't have a stamp for, even if your intent is to wait until you do, it still is illegal to own that stock.
So possession of it can be both legal and illegal at the same time. Possession even with intent to wait until you have a tax stamp to use it on the pistol is illegal.
Possession for an AR-15 you have that it fits on, and at a later date deciding one of the stocks you have for your AR-15s would be nice on your pistol after you have the tax stamp is legal.
It is all intent. Since your clear intent is to purchase and own it for eventual use with the pistol, ownership of it in any way, even miles away at a family members house is illegal constructive possession of a SBR (once again constructive possession has nothing to do with construction.)

opticalc
April 22, 2008, 03:50 PM
I have a Colt M4LE registered SBR that has a 14.5" barrel. I also have a regular AR15 m4gery with a 18" barrel.

So the way Im reading it, it looks that if I were to buy an additional 11" upper to swap back and forth with the 14.5" on my SBR, that it would be constructive intent????

buzz_knox
April 22, 2008, 04:06 PM
So the way Im reading it, it looks that if I were to buy an additional 11" upper to swap back and forth with the 14.5" on my SBR, that it would be constructive intent????

No. ATFE couldn't make a plausible argument that you got the 11 inch upper in order to mount it on the unregistered lower. The problem (based on statements attributed to ATFE on NFA boards) would be if you didn't have the 18 inch upper. A trier of fact might think that if the only uppers you have for the lowers are both SBR, you might be tempted to attach them. ATFE's argument would play into that.

nalioth
April 22, 2008, 04:12 PM
So the way Im reading it The 'way you're reading it" is that they'll get you if they want you.

How would they know you didn't get a smokin' deal on it and have 'constructive intent' to build a pistol out of it?

...or any other legal scenario....

Hkmp5sd
April 22, 2008, 04:40 PM
So the way Im reading it, it looks that if I were to buy an additional 11" upper to swap back and forth with the 14.5" on my SBR, that it would be constructive intent????

Yes. That is essentially what ATF stated in their letter dated March 29, 2000 (shown above). If you have more short uppers than you have registered lowers and a normal AR-15, they say you are in violation. If you have a registered lower (SBR or machinegun) and no AR-15 rifles, you can own as many short uppers as you desire.

larry_minn
April 22, 2008, 06:49 PM
Sorry to say the process stinks. ITs a stupid law that should be found illegal. It makes no sense.
I can "legally" buy a "pistol" lower that is 100% the same as a "rifle" lower. Same internals, trigger, mag,caliber. If its pistol I can NOT put a stock on it. If it is rifle I can't put a barrel under 16" total length (with flash hider IF its welded on to the point that even if placed in vice and monkey wrench with cheater bar can't break it loose) (without paying couple hundred bucks/background check and half yr plus wait)

Its dang sad.

Zoogster
April 22, 2008, 08:07 PM
ITs a stupid law that should be found illegal.

It is not a law, it is an interpretation of a government agency given the task of enforcing the law.
A policy and a law are two different things. In the ATFs case though policy has the authority of law, but is not law.

So in that sense there is no specific "law" to overturn. Just an interpretation of what possession of an NFA item is, when an NFA item is not actualy assembled.

The NFA does not outlaw it in its wording, the ATF does through thier policy to interprete possession when there is not actualy possession.

At all times most people are in possession of an NFA item based on possible interpretations.
"Readily modified" is an interpretation. Most semi-auto actions are readily modified in under an hour to actual full auto. I mean take the little aftermarket happy switch sold for Glock pistols, it does very little internaly to make them full auto.

Once a firearm is confiscated by agents they got hours in a lab to demonstrate just once that a semi auto can fire more than once with a pull of the trigger. They can use special ammo, and make various modifications to the action, with thier goal to make as minor or few as possible so they can present that in court. Then they can just show a video clip of that.
Ultra soft primers, and a lil dust in the firing pin area and you can get almost any semi auto to eventualy fire more than one round in a short time.
Many SKS rifles will go full auto if you don't clean the cosmoline out of them before use. Not reliably, but all it takes is once during an hour of recorded video by people trying to do that.

Beagle-zebub
April 24, 2008, 06:20 PM
I thought of this thread when I heard Douglas Fife on the radio saying that Iraq had indeed had all sorts of dual-use whatever that could be "readily converted" into WMDs. Good ideas just don't know any limits, do they!

packnrat
April 25, 2008, 01:52 PM
when in doubt...play it on the safe side,

keep the parts in deffernt places, maybe even deffernt states.

till the feds give you the ok paper work.


:uhoh:


.

and do not talk about these things online as "they" do read the postings.:banghead:


.

opticalc
April 25, 2008, 01:58 PM
im not worried. I only have a 14.5" M4LE thats never been fired, and probably will never be fired, and a homebuilt 18" AR15. Speaking of the homebuilt one, if i put in a rock river national match two stage trigger, will that reduce the likelyhood of a malfunction that could be used to say that I had a machinegun? Are 2 stage triggers less or more difficult for the ATF labs to "force" to go full auto?

barnetmill
April 25, 2008, 03:35 PM
TexasRifleman wrote:

"The ATF doesn't "make" law though. They can only enforce laws on the books. If they give you legal advice they could always change their minds in court.'

Federal agencies after a law is enacted by congress issues regulations that tell (decide) how that law will be enforced. There normally is a public comment period. OSHA was recently shot down when they tried to regulate sporting ammunition sales the same way they would high explosives at a construction site.

I do not know if every BATFE regulation is submitted to public comment. I also do not know if a letter issued by them covers the US universally or if what goes on in the west coast differs from what goes on the east. The US district courts vary from one district to the next on some decisions. Most likely if you have a letter from them applying to specific question that you asked you are probably safe. Someone else might not be safe in a similar case. Me I stay away from possible illegal scenarios, but as complicated as the laws (regulations) are one always worries.

If you enjoyed reading about "BATFE and "Constructive Intent"" here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!