When does a firearm or stripped lower become an SBR?

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Ok, I know the easy answer to the question that I propose is "when a stock is attached to the pistol." I know I can't be attaching stocks to pistols without first having an approved tax stamp.

However, I am a little confused with regards to when a pistol becomes an SBR.

Scenario A: I want to make an SBR and I will be making it from an Anderson stripped lower. While I wait for my tax stamp to come back, I would like to buy and assemble whatever I can legally so that I can test fire the firearm, making adjustments/improvements as needed, and then slap a stock on when the tax stamp arrives.

If I buy and assemble everything with the exception of the stock, would this firearm be considered a pistol or an SBR? Let's say that I use a 6-position buffer tube, but again, I do not attach a stock. I am curious because I am sure that there are some that would say that I would need to use a pistol buffer tube and not a rifle/multi-position buffer tube in order for it to be considered a pistol, but I am inclined to say that so long as the stock is not physically on the firearm, it is still a pistol regardless of whether there are holes in the buffer tube to accept a stock or not. However, I welcome the experts experience to guide me.


Scenario B: If I take a Yugo M92 PAP pistol and drill holes in the rear and attach a Stormwerkz folding hinge, but do not install the stock, is this still considered a pistol? I believe so since I did not install a stock, but just a device in anticipation for installing the stock upon receipt of approved tax stamp.


Scenario C: What constitutes the ever-so-feared "constructive possession"? I ask, because if I own an AR15 rifle, but I also have an AR15 pistol, would I be in constructive possession since I could simply swap the uppers between the rifle and pistol and make an SBR? What if I have accumulated a bunch of AR parts and I could assemble an SBR from them? Correct me if I am wrong, but there is a huge gray area when it comes to constructive possession. There is nothing that I know of that says that I can only have as many stocks as AR rifles as I own or that stocks need to be kept locked up or so far away from pistols or firearms that they could be readily added to in order to make a SBR.


My apologies for the long post. I want to make sure that I am legal in all that I do. And yes, I know someone will likely chime in and tell me to go talk to a lawyer, but I know we have lawyers on this site and if there are simple answers or documentation that I can have without having to pay for a lawyer, I will go that route. If in doubt, I will air on the side of caution. In addition, some of these questions are questions that I am just curious about.

Oh how nice it would be to be truly free and not have to be ruled by NFA laws and rules. Thanks for your input.
 
Part of the answer is that if your lower isn't a "pistol" lower, if you put a sub-16" barrel on it you've created an illegal weapon, regardless of whether it has a stock on it or not. So that partially answers A.


For B, considering that arm braces are legal for pistols, having a stock attachment point can't be a problem.


My understanding is that C is all about only having parts that could be assembled illegally. In other words, having a pistol upper and rifle lower, but nothing else is a problem. But having an AR rifle and an AR pistol is not an issue, even though you could mix and match them into something illegal.


I defer to someone who knows better, but the two ruling factors in things like this are:
- Would a reasonable person assume you are doing something wrong? (Ex: 1 upper, 1 lower, only one way to put them together.)

- Are you in other criminal legal trouble where your firearms are going to be under the microscope?
 
If you purchased your receiver as a stripped lower and registered it as an AOW and then assembled it, you can legally make it into either rifle or pistol. That was the ATF ruling with the Thompson Contender, G2, etc, receivers staying configured as they were sold. If they were sold as a rifle they had to stay a rifle, same rules for a pistol. I would wait for the paperwork before assembling a stock/rifle buffer of any type as ANY problems *might* land you in hot water.


Sam 1911 is correct I used the wrong term it should have been "other firearm". He clarified my mistake in post 8.
 
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Thanks. Can you clarify why creating a pistol from a stripped lower would be an illegal weapon? I was under the understanding that when one buys a stripped lower, it is neither designated a rifle or pistol on the ATF Form 4473, but it can be built into either a rifle or pistol. Please correct me if I am wrong.

Perhaps if I had bought a rifle and wanted to use its lower to make a pistol-configured AR, I'd be breaking the law because I would have turned a rifle into a pistol. However, as I understand it, so long as the firearm originated as either a stripped lower or pistol, it can take the shape of a rifle or pistol as the owner chooses. Again, maybe I don't have my information straight or things have changed so let me know what I'm missing. Thanks.
 
The first time the lower goes on a 4473, the FFL dealer has to correctly fill out that section - not you, the buyer. So it has to be a virgin lower, and you need to make sure the FFL fills it out right.

You can see how that could go wrong. But you had it right. I was thinking of rebuilds.
 
You don't have to worry about making sure the lower is transferred as a pistol or rifle, because they're only able to be sold as "other" on a 4473.

If you took a pre-existing rifle and put a sub 16" barrel on it, you'd technically be making a SBR (whether or not there was a stock on it) because it is a "pistol made from a rifle". If you build a pistol, you can put a rifle length barrel and stock on it, and then go back to a pistol at a later date without technically making a SBR. It's kinda stupid, but that's what the ATF has decided.

This would be difficult for the ATF to prove unless you bought the gun as an assembled rifle and then put the short upper on it. If you're starting out with a stripped lower, who's to say that it wasn't a pistol before it became a rifle?

The Thompson issue has nothing to do with AOW registration (and AOW registration has no bearing on changing the weapon back and forth between rifle and pistol configuration).

OP: for question A:
You can build an AR pistol with a standard buffer tube as long as you don't have a stock on it. There's an ATF letter on the matter, but I don't have it at the moment. I know there's a copy on arfcom. However if you're worried about it and want to play it safe, throw on a pistol buffer tube and just swap out the buffer tube once your stamp comes back.

B:
I think you are correct in that you can drill the back of an AK receiver and be ok. Again, as long as no stock is on the rifle.

C:
Constructive possession is a slippery issue. I've heard it described as "you are good unless there is no legal way for your parts to be configured". If you have one AR pistol and one rifle
And they are assembled in their normal (title 1) configuration, you're fine. If you have one AR pistol only but have a rifle buffer tube and a stock, then you might be in "constructive possession". I wouldn't worry too much about it unless you're doing other illegal things and are planning on having the police raid your home. Constructive possession is almost exclusively an add-on charge when police already have a case build against someone.
 
Part of the answer is that if your lower isn't a "pistol" lower, if you put a sub-16" barrel on it you've created an illegal weapon, regardless of whether it has a stock on it or not. So that partially answers A.
This is completely incorrect.

There is no such thing, legally speaking, as a "pistol lower." (Even though some manufacturers have indeed marked them that way. Means nothing to the law.)

A bare lower receiver transfers as an "Other Firearm."
A lower receiver attached to a stock and 16"+ barrel transfers as a Long Gun.
A lower receiver with no stock but a barrel over 16" long, and/or overall length above 26" transfers as an "Other Firearm."
A lower receiver with no stock and a short barrel and overall length below 26" transfers as a "Handgun."

A lower receiver attached to a stock and with a sub-16" barrel would transfer as an NFA short-barreled-rifle, and that's a whole different ball game.

There is no such thing as a "pistol lower."




My understanding is that C is all about only having parts that could be assembled illegally. In other words, having a pistol upper and rifle lower, but nothing else is a problem. But having an AR rifle and an AR pistol is not an issue, even though you could mix and match them into something illegal.

More or less right on.

There is a presumption of innocence that if you've got a collection of parts that could be assembled legally, or could be assembled illegally, you must be assumed to be using them legally -- UNLESS You're actually caught with them in an illegal configuration.
 
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If you purchased your receiver as a stripped lower and registered it as an AOW and then assembled it, you can legally make it into either rifle or pistol.
Woah, woah, woah. No, back up. An "AOW" is an "Any Other Weapon" under the NFA rules. That's totally different from the regular GCA-regulated "Other Firearm" identification that appears on the 4473 form.

(There would be almost no reason EVER to register any AR-15-based weapon as an AOW. That classification is for things like shotgun pistols, pen or wallet guns that don't look like guns, and other weird oddities.)

If you purchase a bare receiver, it will transfer as an "Other Firearm" and you can build that either into a rifle or a pistol as you wish.
If you first build it as a pistol, yes, you can reconstruct it as a rifle and then a pistol again, etc., as you wish.
 
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The first time the lower goes on a 4473, the FFL dealer has to correctly fill out that section - not you, the buyer. So it has to be a virgin lower, and you need to make sure the FFL fills it out right.

Grin. See, this is the eternal problem with having to interpret the 1934 National Firearms Act in the modern day with so many little niches that don't fit well.

Think about this: What if your local dealer has a pile of used, stripped AR15 lower receivers on his shelf and you buy one?

If an AR15 ships from a manufacturer as a completed rifle, there is a record that it was FIRST built as a rifle. That should be pretty clear. If it ships from the manufacturer as a "handgun" then, again, that should be clear -- it was first a pistol, because the manufacturer made it so.

If you buy one as a stripped lower, new stock, then you can pretty much say you did whatever you want to say, first. It would be pretty complicated to prove otherwise.

The real rub, though -- if anyone was ever going to even attempt to enforce this -- would be what if you buy a stripped lower as used, from a dealer. When he takes this stripped lower in trade he's supposed to log it as an "other firearm" like any other lower. Outside of rather a lot of research, you the buyer would have no way to know whether it had ever been a rifle, or if it was ever FIRST a rifle.

Does the slate get wiped clean when it transfers through a dealer as a bare receiver?
But what if it has a name brand on it like Colt, who never sold anything but assembled rifles?

I think this is one of those issues like 922(r) where the ATF says ... ahhh like here's our rule and we really don't want to have to think about it anymore.
 
If I buy and assemble everything with the exception of the stock, would this firearm be considered a pistol or an SBR? Let's say that I use a 6-position buffer tube, but again, I do not attach a stock.
...
Scenario B: If I take a Yugo M92 PAP pistol and drill holes in the rear and attach a Stormwerkz folding hinge, but do not install the stock, is this still considered a pistol? I believe so since I did not install a stock, but just a device in anticipation for installing the stock upon receipt of approved tax stamp.

This is really where we find the fuzzy edges of the whole "constructive" question.

(Technically, while everyone uses the terms Constructive Possession or Constructive Intent, those mean something else to lawyers...but that's what we all call this problem.)

If you have an AR-15 pistol with a barrel less than 16" long, and it has a 6-position buffer tube on it, and you've got an M-4 style stock on the shelf ... well, there might be a case there against you.

If you've got an AR-15 pistol with a barrel less than 16" long, and it has a 6-position buffer tube on it, and you DON'T OWN (or possess at all) a stock to go on it, there probably isn't a case to be made against you.

Of course, as the ATF has stated that shouldering a bare buffer tube makes that a weapon made or re-made to be fired from the shoulder, and hence a rifle, with a short barrel -- this is only one of muddy holes you could fall into.
 
The problem with threads like this is that you get a mixture of both good and bad advice. That is the case here. You have gotten good answers, and you have gotten very bad answers. Since you are asking the question, it is my assumption that you won't be able to glean the gold from the dross.
 
That's why a smart user of any free public information resource, like any web forum, learns to weigh the responses given based on a number of factors.

But that's all of life, really. Even if you're going to books and guides, you'll still find conflicting advice from the most authoritative of sources. Heck, even from the SAME source, sometimes! (For one very pertinent example: The BATFE itself, which seems to pride itself on never providing the same ruling twice! :D)

Always ask: Does this make sense? Are there holes in this explanation? Is there a good track record I trust? What references to source material are provided (if any)? Are there concurring opinions that add credibility? (Or take away from it!? Ha ha!)

And always, in any case, consult a lawyer in your state if you want to take the "riskier" answer and it's your butt on the line.
 
It's always fun learning the NFA world, you'll get a pretty good grasp of it here, lot of knowledgeable people. Listen to Sam1911, and if you want to fill your brain do a search for Aaron Baker's posts in the NFA section for lots of legality questions he's answered. And he wrote the Sticky at the top of the NFA section.
 
A lot of frighteningly bad advice here that could put you in prison!

Everything Sam 1911 posted is correct.

Mike
 
A. You're good as long as you don't put that stock on until you get the stamp.

B. Ditto

C. As long as you have a registered SBR lower you can put whatever you want on it. You could have 5 SBR uppers and be fine.
 
Since this thread has come back from the dead, I will give a more detailed response:

Constructive possession is somewhat of a legal grey area but current ATF policy is based on ATF ruling 2011–4 standard "A firearm, as defined by the National Firearms Act (NFA), 26 U.S.C. 5845(a)(3), is made when unassembled parts are placed in close proximity in such a way that they . . . serve no useful purpose other than to make . . ." In general, ATF technical rulings are not law but this one was a recognition of a US Supreme Court ruling in US v. Thompson-Center after resisting for 19 years and therefore pretty sound.

This is a lot less ambiguous than it used to be (NFA vs. Assault Weapon Ban interactions used to be really messy) but "close proximity" is still a little grey. As a general rule of thumb, If you have a group of parts under one roof or in one vehicle what could be assembled in an illegal configuration, you'd better have enough other parts to use them legally as well.
Under this ruling, you could have a carbine tube on your pistol, a carbine, and one or more stocks in your gun safe but it you took the pistol and a stock in your car and left the carbine at home, you may have an issue.

During very high stamp approval times (like the post-Dorner period where they went up to 13 months). I would keep 1 critical part like a stock adapter or a short barrel in my safe deposit box while working on the others.

Mike
 
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