So I want a pistol ar15 and then an SBR. I'm only 20 so here is my question. If I bought a pistol ar15 upper. Or had someone else buy it and hold onto it for me. (Keeping it completely out of my possession/house) would I be in violation of a law for "constructive intent" because I own a complete rifle?
Constructive intent to make an SBR?
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Jackal
Member
Regardless what people say here, I'd advise you contact the ATF and ask.
:banghead:
Why do people insist on using legal terms, when they are completely ignorant of their actual meaning? "Constructive Intent" has ZERO to with an ability to construct a product.
Here is the reality of "Constructive Intent":
From Black's Law Dictionary, "constructive intent: A legal principle that actual intent will be presumed when an act leading to the result could have been reasonably expect to cause that result."
For example, if a person drinks alcohol until they become intoxicated, then drives an automobile, and causes an accident resulting in a death. The act of drinking and driving can be reasonably expected to result in an accident, including fatal accidents, and therefore the drunk driver can be charged with manslaughter.
Why do people insist on using legal terms, when they are completely ignorant of their actual meaning? "Constructive Intent" has ZERO to with an ability to construct a product.
Here is the reality of "Constructive Intent":
From Black's Law Dictionary, "constructive intent: A legal principle that actual intent will be presumed when an act leading to the result could have been reasonably expect to cause that result."
For example, if a person drinks alcohol until they become intoxicated, then drives an automobile, and causes an accident resulting in a death. The act of drinking and driving can be reasonably expected to result in an accident, including fatal accidents, and therefore the drunk driver can be charged with manslaughter.
Telekinesis
Member
Just do a form 1 for your current rifle. That way (once the stamp comes back) you can have either short barrel or a 16"+ barrel on the rifle and be ok. Don't buy the short upper until the stamp comes back and you'll be fine.
You can do a form 1 while you're under 21 (but over 18). The 21 rule is for any transfer that goes through a dealer. I know of several people who have approved form 1s from when they were between 18 and 21.
You can do a form 1 while you're under 21 (but over 18). The 21 rule is for any transfer that goes through a dealer. I know of several people who have approved form 1s from when they were between 18 and 21.
I posted some incorrect information in a prior post 
o) and was called on it by a couple of members, quite correctly, I might add. For the members who called me on it, thank you.
Nothing else to see in this post. Thread derailment over. Let's move along.
o) and was called on it by a couple of members, quite correctly, I might add. For the members who called me on it, thank you.Nothing else to see in this post. Thread derailment over. Let's move along.
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USAF_Vet
Member
Are you involved in a lifestyle that may include the risk of police investigation?
Constructive intent/ Constructive possession is, for all intents, an add-on charge. And when it comes to AR's there really isn't much of a guideline other than the investigators feelings.
My current rifle build is a 10.5" barrel, and will have a permanently attached 5.5" brake. It is not assembled yet, although I have a complete lower with stock waiting for it get finished. If investigated, I could be found to have constructive intent of an SBR, because I have a full lower and a 10.5" barrel. I also have an AR pistol and a spare stock, as well as an already completed rifle.
Is it illegal to possess a bunch of AR lowers and various spare parts? No. No more than it's illegal to have common household chemicals, gunpowder and plumbing fixtures.
Constructive intent is largely about the intent. I can easily explain the 10.5" barrel and the 5.5" muzzle break, along with the welder and gasses and silver solder sticks shows the intent to permanently affix them for a legal length barrel. But without an investigator, to whom must I prove said intent?
If you've got a great deal on a pistol upper, get it. It's not illegal to possess a short upper and a complete rifle.
*** I'm not changing or deleting my first post, but I'm adding this to inform those who read this post that the information is likely faulty. Please refer to Post #18 for clarification***
Constructive intent/ Constructive possession is, for all intents, an add-on charge. And when it comes to AR's there really isn't much of a guideline other than the investigators feelings.
My current rifle build is a 10.5" barrel, and will have a permanently attached 5.5" brake. It is not assembled yet, although I have a complete lower with stock waiting for it get finished. If investigated, I could be found to have constructive intent of an SBR, because I have a full lower and a 10.5" barrel. I also have an AR pistol and a spare stock, as well as an already completed rifle.
Is it illegal to possess a bunch of AR lowers and various spare parts? No. No more than it's illegal to have common household chemicals, gunpowder and plumbing fixtures.
Constructive intent is largely about the intent. I can easily explain the 10.5" barrel and the 5.5" muzzle break, along with the welder and gasses and silver solder sticks shows the intent to permanently affix them for a legal length barrel. But without an investigator, to whom must I prove said intent?
If you've got a great deal on a pistol upper, get it. It's not illegal to possess a short upper and a complete rifle.
*** I'm not changing or deleting my first post, but I'm adding this to inform those who read this post that the information is likely faulty. Please refer to Post #18 for clarification***
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And exactly how do you know this? Please cite legal authority to support your claim.USAF_Vet said:
It is irresponsible to tell someone that something is legal unless you can back your opinion up with legal authority.
1911 guy
Member
I think it actually is illegal. It's fine to have both an AR pistol and rifle. It's fine to have a pistol AR and a rifle upper. But having only a rifle lower and upper shorter than 16 inches requires a tax stamp.
Closest thing i could find at 2:00 am
https://www.atf.gov/firearms/qa/if-...shoulder-stock-does-constitute-possession-nfa
Closest thing i could find at 2:00 am
https://www.atf.gov/firearms/qa/if-...shoulder-stock-does-constitute-possession-nfa
USAF_Vet
Member
I would say the onus is on those who say it IS illegal to support their claim. What is not illegal is legal. There is no law that permits open carry in Michigan, so open carry is legal. I'd like to see the law that specifically forbids possession of a short barrel AR upper while in possession of a completed AR rifle.
If he purchases it and opts to store it elsewhere, would there still be question as to its legality?
If he purchases it and opts to store it elsewhere, would there still be question as to its legality?
Hogwash -- in this context.USAF_Vet said:
If, with the understanding that someone intends to do a thing, you tell him that it's legal to do, you jolly well better know what you're talking about. If he pays attention to you, and you're wrong, he's the one who goes to jail.
So since your claim that something is legal has the potential to put the OP in jeopardy, you need to be able to defend it. And I'm quite sure that you are not qualified to do so.
Theohazard
Member
There actually is a guideline, and it was provided by the ATF themselves. Here's their ruling on the subject:USAF_Vet said:
https://www.atf.gov/files/regulations-rulings/rulings/atf-rulings/atf-ruling-2011-4.pdf
Here's the key part of that ruling:
It seems to me that if you have the parts for an SBR in "close proximity" to each other with "no useful purpose" other than to make an SBR, then it's the ATF's opinion that you're breaking the law. That's why it's often advised to store the parts far away from each other or to have a pistol lower nearby.
Now, the term "no useful purpose" seems clear to me. However, the term "close proximity" is pretty vague. I once asked the lead ATF agent for an FFL/SOT audit what "close proximity" meant exactly, and he told me that was a question for a lawyer. That vagueness is why people often just avoid having the parts together in the same house just to be safe.
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USAF_Vet
Member
Ok, now we're getting somewhere. And what, exactly defines "close proximity"? Is an AR pistol upper still in the unopened postal packaging "close proximity"? Is an AR pistol upper kept in another place entirely
still close enough of a proximity?
If the OP purchases the upper, stores it elsewhere, while maintaining possession of only the complete rifle he currently has, would that still be construed as constructive possession?
As for the term, the only definition of Constructive possession I can find are included in case reports:
https://www.atf.gov/file/59566/download
https://www.atf.gov/file/59461/download
(PDF file downloads, sorry)
which have to due with felons in constructive possession, meaning they are in close enough proximity to a weapon that they, being a prohibited person, could access and take control of the firearm.
I've found nothing other than the NFA reference 1911 guy linked.
Here is the only thing I've found that even defines Constructive Possession, linked from a US Virgin Islands code
https://www.atf.gov/file/58531/download
(sorry, yet another PDF download)
I found something similar in regard to explosives:
Still, in regard to the original question, It's still vague, because "close proximity" has yet to be defined.
Bobson
Member
Suppose a guy owns a "standard" AR15 (lower with a buttstock, and a 16" barreled upper), and he also owns an AR pistol with a 11" barrel, and keeps them in the same safe.
Is that illegal, given that he could swap the uppers back and forth at any given moment? Or does the ATF just trust that people won't?
Is that illegal, given that he could swap the uppers back and forth at any given moment? Or does the ATF just trust that people won't?
Bobson
Member
Wouldn't that be a straw purchase?
ljnowell
Member
No because an upper isn't serialized. It's not a firearm. It's no different than buying someone a slug barrel for their shotgun.
Theohazard
Member
I'm not a lawyer -- nor am I an ATF agent -- but based on my layman's interpretation of ATF ruling 2011-4 that I linked to in post #12, that would be perfectly legal.Bobson said:
It would only be illegal if the parts were simultaneously in "close proximity" to each other and you also had "no useful purpose" for having them other than to make an illegal SBR. "Close proximity" is vague, but I'd bet that being in the same safe counts. However, you also need to have "no useful purpose" for having those SBR parts. And considering your SBR parts (the short-barreled upper) are in the form of a legal AR pistol, that should qualify as a "useful purpose". So you're perfect legal as far as I can tell.
And even if all the parts were disassembled, you could still make the case that the SBR parts weren't for an SBR, they were for an AR pistol.
USAF_Vet
Member
OK, I've been doing a lot of reading the past couple hours, educating myself.
There is a lot of bad information out there, and although I've seen NO DEFINITIVE LAW that specifically answers yes or not, legal or illegal to the OP's question, I've gotten a lot more understanding of what Constructive Possession and Constructive Intent mean.
So, I'm going to change my advice to the OP, and here is why.
IF ownership of BOTH an AR-15 rifle AND an AR-15 Pistol Upper with no lower is illegal (and remember I have not seen any definitive law stating one or the other) it doesn't matter, under constructive possession (as defined by the Cornell School of Law as The legal possession of an object, even if it was not in a person’s direct physical control) storing it elsewhere would still be illegal as long as the OP had any access or control over it. Now it were placed in a friends safe, and the OP had no key or combination to that safe, then he has no constructive possession, and that would be legal.
As per Constructive intent (intent that is inferred to exist (as from willfulness or recklessness) in relation to an act), it really has no application here. Constructive Possession of an unregistered SBR can occur when the OP has both a short barreled upper and a stocked lower. It's still a grey area because if that stocked lower is under lawful use on a legal rifle, the prosecution would have to convince a jury that the OP possessed an unregistered SBR because he also owned a rifle, and therefore had no lawful use for the short barrel upper.
ATF has already ruled that owning an AR rifle and an AR pistol is not Constructive Possession despite the fact that the uppers could be swapped.
I do still maintain that the Constructive Possession charge is an add-on. A felon can be charged with CP if they could potentially take control of a firearm, i.e. driving a vehicle and having the means to open the trunk, in which lies a firearm. This can also apply to persons in CP of drugs and other illegal substances or items.
So err on the side of caution and do not possess a short upper and no lower for it. It could be argued by a prosecutor (how it got before a prosecutor is another matter) that you had possession of an unregistered SBR, despite your intentions to build a pistol.
If someone else purchased the upper, it would be theirs to do with as they please. You can't have constructive possession of an item that does not belong to you. You can purchase the upper from them, after you have your pistol lower, and it'd be 100% legal.
Even a stripped lower should probably suffice, again provided you didn't have a spare stock laying around.
This subject comes up a lot here, and for years there hasn't been a definitive answer. Lawyers like Frank haven't been able to provide a clear and concise definition as it pertains to AR pistols and rifles and lowers and Constructive Possession. It's vague, probably by design.
You'd likely never be prosecuted for Constructive Possession of an unregistered SBR, so the risk is entirely up to you.
There is a lot of bad information out there, and although I've seen NO DEFINITIVE LAW that specifically answers yes or not, legal or illegal to the OP's question, I've gotten a lot more understanding of what Constructive Possession and Constructive Intent mean.
So, I'm going to change my advice to the OP, and here is why.
IF ownership of BOTH an AR-15 rifle AND an AR-15 Pistol Upper with no lower is illegal (and remember I have not seen any definitive law stating one or the other) it doesn't matter, under constructive possession (as defined by the Cornell School of Law as The legal possession of an object, even if it was not in a person’s direct physical control) storing it elsewhere would still be illegal as long as the OP had any access or control over it. Now it were placed in a friends safe, and the OP had no key or combination to that safe, then he has no constructive possession, and that would be legal.
As per Constructive intent (intent that is inferred to exist (as from willfulness or recklessness) in relation to an act), it really has no application here. Constructive Possession of an unregistered SBR can occur when the OP has both a short barreled upper and a stocked lower. It's still a grey area because if that stocked lower is under lawful use on a legal rifle, the prosecution would have to convince a jury that the OP possessed an unregistered SBR because he also owned a rifle, and therefore had no lawful use for the short barrel upper.
ATF has already ruled that owning an AR rifle and an AR pistol is not Constructive Possession despite the fact that the uppers could be swapped.
I do still maintain that the Constructive Possession charge is an add-on. A felon can be charged with CP if they could potentially take control of a firearm, i.e. driving a vehicle and having the means to open the trunk, in which lies a firearm. This can also apply to persons in CP of drugs and other illegal substances or items.
So err on the side of caution and do not possess a short upper and no lower for it. It could be argued by a prosecutor (how it got before a prosecutor is another matter) that you had possession of an unregistered SBR, despite your intentions to build a pistol.
If someone else purchased the upper, it would be theirs to do with as they please. You can't have constructive possession of an item that does not belong to you. You can purchase the upper from them, after you have your pistol lower, and it'd be 100% legal.
Even a stripped lower should probably suffice, again provided you didn't have a spare stock laying around.
This subject comes up a lot here, and for years there hasn't been a definitive answer. Lawyers like Frank haven't been able to provide a clear and concise definition as it pertains to AR pistols and rifles and lowers and Constructive Possession. It's vague, probably by design.
You'd likely never be prosecuted for Constructive Possession of an unregistered SBR, so the risk is entirely up to you.
Theohazard
Member
USAF_Vet, your last post seems to be getting into lots of legal details. Are you a lawyer? I'm not asking this to disparage you, but to simply bring up the following point: I've learned that getting into legal details without any legal training is often a bad idea. It's easy to misinterpret things or simply to misunderstand them. Again, I'm not trying to insult you, I'm just offering you advice based on personal experience. If you noticed, I qualified my previous posts accordingly.
http://blog.princelaw.com/2009/09/01/florida-man-arrested-for-constructive-possession-of-an-sbr/
What's your basis for that claim? This case seems to show that constructive possession was the primary charge:USAF_Vet said:
http://blog.princelaw.com/2009/09/01/florida-man-arrested-for-constructive-possession-of-an-sbr/
USAF_Vet
Member
No, I'm not a lawyer, just giving my perspective and why I feel the way I do.
It's the internet, and advice is worth what anyone pays for it, minus internet service fees. Basically, it should be understood that legal advice from a public forum should always be taken with a grain of salt, even if it's from a lawyer. One of the legal experts on THR has a sig line similar to "I am a lawyer, but I'm not YOUR lawyer."
As for the case you presented, that was a sting operation where a guy had all the pieces of an SBR and sold them all to an undercover cop after posting it on Craigslist. In that one case, he was investigated solely on the Constructive Possession of an SBR, which likely would never have happened had he not been an idiot and presented the evidence online for any and all to see. Generally, CP is an add-on charge, this was a rare, if not unique case.
In the Thompson Center Contender case, it was ruled that when all the parts are sold as a kit, Constructive Possession does not apply. If someone were to sell an AR kit that included a 16"+ barrel, a less than 16" barrel, a receiver, a stock and a pistol buffer tube, would the same ruling apply? Sorry if that's a thread derail, but it's a potential killer for AR-15 CP charges.
MachIVshooter
Member
Why wouldn't you simply build a pistol and then file your form one on your 21st birthday? State and local laws notwithstanding, it is legal for an 18 year old to possess a handgun. You just can't buy from a licensed dealer. So, you would have to find a virgin lower or a lower that had been built as a pistol private party, but once you do, there's no federal law preventing you from assembling it into a title I handgun as a 20 year old.
DO NOT, under any circumstances, use a lower that began life as a rifle. A rifle receiver cannot be lawfully turned into a title I handgun.
As far as constructive possession, you need to be aware of that possibility, but it isn't like every short upper is shipped with an ATF agent in the box who's going to come make sure you don't have one too many stocks laying around. There are those of us who have many AR's in many configurations, plus tons of extra parts laying around. Similarly, most of us who own rifles and shotguns also own hacksaws as a stnadard garage implement. The ability to create an SBR or SBS is not tantamount to intent.
The way our justice system works (or is supposed to), if you owned a pile of parts that could be either assembled into a title I rifle and title I handgun, or a long barreled handgun and an SBR, absent proof that you intended to break the law, it is supposed to be assumed that your intent was the lawful former.
Really bad analogy for a number of reasons, not the least of which is that manslaughter is the charge brought when unlawful homicide occurs without premeditiation, deliberation or malicious intent.
DO NOT, under any circumstances, use a lower that began life as a rifle. A rifle receiver cannot be lawfully turned into a title I handgun.
As far as constructive possession, you need to be aware of that possibility, but it isn't like every short upper is shipped with an ATF agent in the box who's going to come make sure you don't have one too many stocks laying around. There are those of us who have many AR's in many configurations, plus tons of extra parts laying around. Similarly, most of us who own rifles and shotguns also own hacksaws as a stnadard garage implement. The ability to create an SBR or SBS is not tantamount to intent.
The way our justice system works (or is supposed to), if you owned a pile of parts that could be either assembled into a title I rifle and title I handgun, or a long barreled handgun and an SBR, absent proof that you intended to break the law, it is supposed to be assumed that your intent was the lawful former.
Really bad analogy for a number of reasons, not the least of which is that manslaughter is the charge brought when unlawful homicide occurs without premeditiation, deliberation or malicious intent.
Saw-Bones
Member
Clarification on Intent
Criminal substantive statutes address the state of a person mind in two ways.
1 - “Mala in se” which basically means “bad or wrong in itself” and does not require intent.
2 - “Mens rea” which means premeditation or intent.
Sometimes a statute can infer intent by making it an element, “corpus delecti”, of the crime by stating it as such. As in (paraphrased), “It shall be prima facie evidence of intent that having any machine gun part in one's possession while at the same time has having an unaltered or partially altered firearm not subject to NFA rules in one's possession”
Manslaughter does not require intent - it is wrong in itself while first degree murder does require premeditation or intent. Intent does not have to be verbalized, but can be inferred by actions.
Criminal substantive statutes address the state of a person mind in two ways.
1 - “Mala in se” which basically means “bad or wrong in itself” and does not require intent.
2 - “Mens rea” which means premeditation or intent.
Sometimes a statute can infer intent by making it an element, “corpus delecti”, of the crime by stating it as such. As in (paraphrased), “It shall be prima facie evidence of intent that having any machine gun part in one's possession while at the same time has having an unaltered or partially altered firearm not subject to NFA rules in one's possession”
Manslaughter does not require intent - it is wrong in itself while first degree murder does require premeditation or intent. Intent does not have to be verbalized, but can be inferred by actions.
Arizona_Mike
Member
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No sure exactly what the ATF defines as "close proximity" but back when Form 1s were taking 14 months or so (post-Dorner) I got a head start on some of my machining keeping a critical part like a stock or barrel in a safe deposit box at my bank which happens to be 25 miles away.
Mike
Mike
Agreed that the safest bet is to either obtain a pistol-lower (sans butt-stock or to be extra safe a pistol buffer tube) or to keep the upper at a friends house. I can't see how you could have dominion and control over something at someone else's house, even if you were the one who bought it. Further you could come up with some kind of paper trail saying that you are giving said upper to friend as a gift (or sell it for a dollar) and hope he doesn't sell it down the road to pay bills.
Bobson
Member
Duh... thanks lol.
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