Constructive Possession

[shooter503]

Can anyone explain the ATF rules on what I believe is called "constructive possession". ie The fact of having firearm parts in possession that COULD be used to build a restricted firearm even though they are not actually assembled into a firearm.

Many years ago I was working up some ammunition reloads for a special purpose that were too powerful to test in a firearm normally designed for the cartridge (a pistol cartridge). I simply purchased a suitable caliber surplus barrel from Numrich Arms, threaded it to fit a surplus rifle I had, chambered it and off I went with the testing. It was not much of a firearm, no magazine, no extractor system, no sights etc etc etc but it would send a bullet down the barrel pretty quickly. Testing completed I removed the barrel from the rifle so I could use the rifle action for a future project (dreamer) and put the barrel in a "useful parts" box in the shop.

A while back, I was surfing this site and I came across the expression "constructive possession" and a little creepy feeling ran down my back. I knew I still had the rifle action, and sure enough, the barrel was still lying in the box of "useful" parts - all 12 1/2 inches of it.

As far as I could tell I was potentially in "constructive possession" of an illegal firearm (it may not have been illegal when I first made it), a short barrelled rifle in a full-sized rifle stock. I immediately cut the threads off the barrel so it could not be reused in the rifle. However, I still possess the lathe I originally used to thread the barrel, the chamber reamers and the barrel blank - am I now still in "constructive possession"? When does the pathway end?

I do not think "constructive possession" existed when I first made the test rifle. I have taken all sensible steps that I can think of that would legalize my position. Is there anything else to be done? If not it would seem that any machinist with a selection of firearms and spare parts could be found in "constructive possession".

 

[MErl]

I'm no expert but I think it refers to something easy to do. like only owning one AR lower in rifle configuration and also having a complete short upper ready to be dropped in. no tools required.

If they want to get that picky, anyone who owns both a rifle and a hacksaw would be in trouble.

 

[orionengnr]

slippery slope, that...

 

[Sonic]

You are fine for now shooter503. At least until the ATF changes their mind about what they consider constructive possession.

For now the ATF has ruled that constructive possession means anytime a person has all the parts necessary for assembling, not fabricating, a working firearm. Fabrication is a separate issue from constructive possession, and fabrication is addressed by federal laws covering firearms manufacturing, specifically that a federal SOT (Special Occupational Tax) license is required to legally manufacture firearms for distribution or resale. Of course contructive possession of a firearm is legal, as long as the assembled firearm would be compliant with federal and local laws, you acquired the parts legally, and you can legally posess a firearm (i.e. you are not a convicted felon).

In this case the parts you now have cannot simply be assembled into a short barreled rifle (which you wouldn't be able to legally possess without first getting a NFA tax stamp from the ATF), but would first require some fabrication, so 'constructive possession' does not apply.

Keep in mind though that this is only the case at this particular moment in time. Constructive possession as it is currently defined is an ATF ruling, not a federal law, and the ATF could change their definition of constructive possession next year, next month, or tomorrow if they wanted neener: The ATF is probably reading this post right now, and no doubt tonight is planning to change their definition of constructive possesion to mean fabrication as well as assembly, so they can arrest you tomorrow ).

By the way (just in case you weren't already aware), at the federal law level it is legal for someone without an SOT license to make a firearm for themselves, as long as they can legally own a firearm, the firearm always remains in their ownership (i.e. during their lifetime they don't sell the firearm or give it as a gift to anyone else), the firearm is compliant with all federal and local gun laws, and the person of course fills out and sends in all the necessary federal forms (and gets ATF approval) before they start fabricating the firearm. A person could even make a short barreled rifle or shotgun this way (if their state's laws don't prohibit short barreled long arms), though in this case they would have to also go through all the steps for legally acquiring a NFA class firearm. Again this is just at the federal law level, and is not the case in states that prohibit firearms manufacturing without a federal SOT and/or state license. Also of course a private citizen without an SOT license cannot legally manufacture a machinegun, since the NFA registry was closed in 1986 to newly manufactured machinegun registrations by private citizens.

 

[shooter503]

Thanks Sonic, a great thing about this site is that there always seems to be someone who can explain things in the way an ordinary person can understand.

As I understand it, you do not manufacture a firearm unless you actually make the regulated part, the receiver. There is nothing to prevent me from re-barrelling a serial numbered action in any way I want as long as I stay within state and federal "specifications" and do not modify the receiver. Is this correct?

The rifle in question was made purely to test ammunition so I used a convenient length of surplus barrel. It may even have been fed. legal at the time I made it. If I had been able to purchase a similar 16 inch (plus) length of barrel and had used this in the project it seems I could have added an extractor, magazine modification and sights and I would have had a perfectly legal rifle. I would not have had to get permission or register the project with anyone. Is that correct or has the law changed since my, quite long ago, adventures in home gunsmithing?

 

[MachIVshooter]

"Constructive possession" is very open to interpretation. If they really wanted to nail you for something, I'm sure the possession of a rifle and a the aforementioned hacksaw could be used.

That said, it seems they only prosecute on the obvious cases, like the guy who has a 90% assembled M1919 and a full auto sideplate that is not installed. Things that can be easily assmbled into a restricted or prohibited weapon from parts that obviously cannot be used for a legitimate purpose. For example, if you have an AR complete lower and a 12" upper and no other firearm, you'd probably be in trouble. But if you had a couple AR rifle lowers, a couple AR pistol lowers, and 4 uppers of various lengths, it is easy to make a reasonable argument that the 16" plus uppers will be used with rifle lowers, and the short upperss on the handgun lowers. This scenario could still get sticky, but you see what I'm saying. Prosecution of constructive possession cases is usually on those where there is no reasonable arguement for possession of the parts to be used in a legal manner.

 

[Car Knocker]

By the way (just in case you weren't already aware), at the federal law level it is legal for someone without an SOT license to make a firearm for themselves, as long as they can legally own a firearm, the firearm always remains in their ownership (i.e. during their lifetime they don't sell the firearm or give it as a gift to anyone else), the firearm is compliant with all federal and local gun laws, and the person of course fills out and sends in all the necessary federal forms (and gets ATF approval) before they start fabricating the firearm.

My memory may be failing, but I don't recall that any federal forms or permission is required to make a non-NFA firearm.

 

[Sonic]

Car Knocker, yes you ou are correct, sorry I wasn't more clear. Only when making an NFA class firearm do you need to send in the appropriate forms (two copies of an ATF form 1 I believe, along with a two finger print forms) to the ATF, and make sure you receive the NFA tax stamp before you start manufacturing the firearm. Though in theory you could do some fabrication on the parts before you receive the tax stamp, just as long as you don't have completed readily-assembled parts that would put you in constructive possession of an NFA firearm before you receive the tax stamp. When making a non-NFA firearm, I believe the only federal law requirements are that it is legal for you to own a firearm, and the firearm is compliant with local and non-NFA federal firearms laws (you may also have to put a serial number on the receiver, offhand I just can't remember right now). Again, you couldn't ever sell or give away a firearm you had made yourself, unless you get an SOT license from the feds to manufacture and sell firearms.

With regards to constructive possession I want to again emphasize that its current definition is just a ruling, which the ATF could change at anytime, and as MachIVshooter mentioned, even under the current definition the ATF could still interpret it quite broadly if they wanted to. However, as long as you avoid the obvious situations, like buying a sub 18 inch barrel for a non-NFA shotgun you have (without first getting the NFA tax stamp), or the 1919 and AR examples MachIVshooter mentioned, you should be okay.

As for building a rifle on a receiver you already have, you are correct Shooter503, a person does not have to get any federal approval for modifying a handgun or longgun they had legally purchased, as long as the resulting firearm is a non-NFA class firearm. For firearms (or receivers) that are purchased as rifles, this means the modified or installed barrel must have an overall length of at least 16 inches (this length includes any permanent barrel attachments), the overall length (with stock extended if the stock is a folding stock) of the rifle is at least 26 inches, and of course the rifle must not have any full auto or burst fire capability.

This is just at the federal level though, and needless to say you should also check your local laws to see if there are any additional requirements. I know there are a few states that measure the overall length of a rifle with the stock folded, rather than extended (the opposite of federal law).

By the way, you could actually use your 12-1/2 inch barrel without making the resulting rifle an NFA class short-barreled rifle, as long as you permanently attached something to the barrel (like welding on a super long flash suppressor) so its overall length was at least 16 inches.

 

[thexrayboy]

So "constructive possession" isn't a law, just a rule made up by some agenda driven unelected career beaurocrat. A rule subject to change at whim without comment or input from the people affected by it and with no means of appeal once written. I can hear the goose stepping now.

So when do they start applying this convenient rule of "constructive possession" to other objects. Say you are a plumber with a shop or truck full of steel pipe, pipe caps and a pipe threader. If you reload your own ammo you may have black powder in your possession. You now have the material needed to "assemble" a destructive device and should of course be immediately arrested. The old slippery slope is starting to look like the
Gunbarrel ski run at Heavenly Ski Resort, a very steep surface usually covered in ice.

 

[MachIVshooter]

I know there are a few states that measure the overall length of a rifle with the stock folded, rather than extended (the opposite of federal law).

IIRC, Federal law is with the stock folded or retracted as well. Must be 26" at it's shortest and have a 16" tube.

For most autoloaders, the 16" tube combined with standard reciever=>26", so not really an issue.

a person does not have to get any federal approval for modifying a handgun or longgun they had legally purchased, as long as the resulting firearm is a non-NFA class firearm

Unless it is an imported non-sporting firearm, in which case 922(r) applies. Just thought I'd point that out to further clarify how UNclear gun laws are.

So "constructive possession" isn't a law, just a rule made up by some agenda driven unelected career beaurocrat. A rule subject to change at whim without comment or input from the people affected by it and with no means of appeal once written.

That's pretty much how every BATFE rule works. Staying on top of firearms laws 100% all the time and fully understanding exactly what they mean would take a team of dedicated lawyers working around the clock.

 

[Sonic]

Welcome to the wonderful world of federal firearms regulations, where the laws are so badly written that something that is legal one day may be illegal the next, and all without any new federal firearms laws actually being passed.

If you think the ATF's broad powers to redefine constructive possession whenever they want is bad, then you don't even want to know how ridiculously broad their regulation powers are regarding the importation of non-sporting firearms. At first when the law banning non-sporting firearms was passed in 1968, the Feds decided that non-sporting only meant machineguns, but as the years have gone by their interpretation of 'non-sporting' has reached the point where any self-loading rifle that even vaguely resembles a machinegun is now also banned from import. The best part, the 1968 law only applies to imported firearms, so all of the firearms that are currently banned from import under the ATF's interpretation of non-sporting would be perfectly legal if they were made in the USA. In fact some US-based companies are (and have been) making and selling self-loading versions of rifles that couldn't be imported (AKs, Galils, Steyr AUG's, etc.).

Of course the 1968 law's premise is completely wrong to begin with, as it completely ignores the fact that self-defense firearms are certainly as legitimate (and in my opinion even more legitimate) than any so-called sporting firearm. Worst of all, no where in the 1968 law is there any attempt to technically define exactly what a sporting or non-sporting firearm is, which is why the ATF has effectively unlimited power when it comes to deciding what firearms can or cannot be imported.

I could also go into the fact that the ATF can classify any shotgun bigger than a .410 as a destructive device anytime they want to, but I've taken this post off topic enough already.

MachIVshooter, thanks for catching my mistake on the folding stocks.

 

[ctdonath]

The notion of "constructive possession" apparently arose from people owning unregistered machineguns, who would with a wink-and-a-nod take the thing apart for storage, reassembling it when they figured they could screw around with it safely. Kinda frustrating for an upstanding BATF agent to know that Joe Schmoe has a complete working machinegun - given about 2 minutes to put the thing back together again - but because parts are scattered about, he can't press charges.

The issue came to a head with the Thomson case, where one could buy a Thompson Contender kit with one receiver, stock, pistol grip, long barrel, and short barrel - all separate. BATF pressed charges because someone could easily build a "short barreled rifle". SCOTUS told 'em to drop it, because there were perfectly legal ways to assemble the parts.

Recently, the BATFE has tried to move the line again. If you own a legal regular AR15, a legal registered NFA short-barreled (SBR or machinegun) AR15, and (here's the kicker) a sub-16" AR15 upper, they'll whack you with the "constructive possession" issue again as you could put the extra barrel on the non-NFA AR15 illegally. Note that they have also recently stopped accepting SBR & MG registrations for "various length, various caliber" guns, insisting on a particular length and caliber, and even something about requiring engraving the upper to match the lower; this gives them leverage via "we were not informed that the spare short upper would be used legally on the registered lower, so we may assume illegal intent for the spare."

That enforcing a law requires such inventions as "constructive possession" indicates there is something fundamentally wrong with the law (in this case, NFA law is unconstitutional and requires ever more complicated mental leaps to justify its existence).

 

[DMF]

You have completely misconstrued the legal meaning of constructive possession. The term has absolutely nothing to do with being able to physically manufacture something. The "parts" would only be a factor if they actually are objects that meet the legal definition of a NFA weapon as defined in the US Code.

Here is a little education on the legal realities of constructive possession (which I've posted here before) and you will see it has nothing to do with being able to physically construct the object:

Black's Law definition of constructive is; "That which is established by the mind of the law in its act of construing facts, conduct, circumstances, or instruments. That which has not the character assigned to it in its own essential nature, but acquires such character in consequence of the way in which it is regarded by a rule or policy of law; hence, inferred, implied, or made out by legal interpretation; the word "legal" being sometimes used here in lieu of "constructive.""

Which leads you to Black's Law definition of constructive possession; "A person has constructive possession of property if he has power to control and intent to control such an item." Com. v. Stephens, 231 Pa.Super.481, 331 A.2d 719, 723. Being in a position to exercise control over a thing. US v. DiNovo, C.A.Ind., 523 F.2d 197, 201.

If you would like a real world example of a gun case where the defendant was found to be in constructive possession of a firearm, read the 7th Circuit decision in US v. Gill (1995). You can find it on findlaw.com

The definition of constructive possession from an earlier 7th Circuit court decision (US v. Garrett, 1990) is; ". . . a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others."

I'll give you an example most people can relate to. When your car keys are in hand you physically possess those keys. If you set those keys down on the coffee table, you do not physically possess those keys, but you still possess them because have the intent to exercise dominion and control over those keys and therefore you are in constructive possession of those keys.

 

[shooter503]

OK Guys, sorry if I am being a pain but your discussion makes me think of another question.

If a folded length of greater than 26 inches and a barrel length of 16 inches constitutes a legal rifle what constitutes a pistol? For example, if I had a folding stock rifle with a pistol grip and a 16 inch barrel and I removed the folding stock it seems I would now have a pistol whereas previously I had a rifle. Does this make sense and would it be legal? Does the existance of the shoulder stock define a rifle?

Addendum
DMF. I can see your point but the actions of the BATF in practice seem to focus on the idea that someone is trying to hide the possession of a restricted firearm by the act of dissassembly and dispersion of the parts. I have not had a chance to search your legal reference yet. The basic situation seems to be that if I stand here with an assembled restricted weapon I am committing an offence. If I stand here with the upper of a weapon in one hand and the lower of a weapon in the other hand I am only committing an offence when I join them together. I say I do not have a restricted weapon - BATF says I do. Our contributers have said this is a very wavy edged rule and it is easy to see the problems, for BATF and for gun owners.

 

[ctdonath]

A pistol has NEVER had a shoulder stock attached, has 1 vertical grip, and an overall length under 26".

No-stock guns over 26" seem to be in a legal undefined zone.

 

[Sonic]

A firearm with no stock and an overall length of more than 26 inches would probably be classified by the ATF as an AOW (Any Other Weapon), which is an NFA class firearm. AOW is a catch-all category for any firearm that doesn't fit into any of the other categories (handgun, rifle, shotgun, short-barreled rifle, short-barreled shotgun, machinegun, destructive device). Examples of AOWs include pen guns and those Serbu super-shorty shotguns.

 

[DMF]

I can see your point but the actions of the BATF in practice seem to focus on the idea that someone is trying to hide the possession of a restricted firearm by the act of dissassembly and dispersion of the parts. I have not had a chance to search your legal reference yet. The basic situation seems to be that if I stand here with an assembled restricted weapon I am committing an offence. If I stand here with the upper of a weapon in one hand and the lower of a weapon in the other hand I am only committing an offence when I join them together. I say I do not have a restricted weapon - BATF says I do. Our contributers have said this is a very wavy edged rule and it is easy to see the problems, for BATF and for gun owners.

It has absolutely NOTHING to do with what the ATF "says" and everything to do with how certain firearms are defined in the US Code by Congress, and the caselaw on those definitions in the courts.

Congress decided the definitions of machineguns, silencers, and destructive devices included a collection of parts, and parts intended solely for making the firearm:

Definition of a silencer: 18USC921(a)(24) "The terms "firearm silencer" and "firearm muffler" mean any
device for silencing, muffling, or diminishing the report of a
portable firearm, including any combination of parts, designed or
redesigned, and intended for use in assembling or fabricating a
firearm silencer or firearm muffler, and any part intended only for
use in such assembly or fabrication."

Definition of a machinegun: 26USC5845(b) "The term "machinegun" means any weapon which shoots, is designed
to shoot, or can be readily restored to shoot, automatically more
than one shot, without manual reloading, by a single function of
the trigger. The term shall also include the frame or receiver of
any such weapon, any part designed and intended solely and
exclusively, or combination of parts designed and intended, for use
in converting a weapon into a machinegun, and 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."

Definition of a destructive device: 26USC5845(f) The term "destructive device" means (1) any explosive,
incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having
a propellent charge of more than four ounces, (D) missile having an
explosive or incendiary charge of more than one-quarter ounce, (E)
mine, or (F) similar device; (2) any type of weapon by whatever
name known which will, or which may be readily converted to, expel
a projectile by the action of an explosive or other propellant, the
barrel or barrels of which have a bore of more than one-half inch
in diameter, except a shotgun or shotgun shell which the Secretary
finds is generally recognized as particularly suitable for sporting
purposes; and (3) any combination of parts either designed or
intended for use in converting any device into a destructive device
as defined in subparagraphs (1) and (2) and from which a
destructive device may be readily assembled. The term "destructive
device" shall not include any device which is neither designed nor
redesigned for use as a weapon; any device, although originally
designed for use as a weapon, which is redesigned for use as a
signaling, pyrotechnic, line throwing, safety, or similar device;
surplus ordnance sold, loaned, or given by the Secretary of the
Army pursuant to the provisions of section 4684(2), 4685, or 4686
of title 10 of the United States Code; or any other device which
the Secretary finds is not likely to be used as a weapon, or is an
antique or is a rifle which the owner intends to use solely for
sporting purposes."

Again, constructive possession is not defined by ATF, but the term doesn't apply to question. Also, Congress not ATF have defined what is or is not a particular type of firearm.

 

[Thin Black Line]

Definition of a destructive device: 26USC5845(f) The term "destructive device" means (1) any explosive,
incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having
a propellent charge of more than four ounces,

add:

Controversy in the U.S.

Both amateur and model rocketry have come under controversy in the United States following the terrorist attacks on New York and Washington D.C., as federal and state authorities allege that model rockets can be modified to act as weapons.

Authorities argue that all members of the hobby should have to be licensed and their purchases recorded and reported to federal agencies. Critics of such policies, particularly those involved in the hobby itself, argue that while building model rockets capable of going great distances is a relatively simple feat, guidance systems are exceedingly difficult to design and expensive to implement.

The NAR and Tripoli continue to pursue litigation against the BATFE in the matter.

Watch out if you have an Estes model rocket made of card-board tubes and
balsa wood and a bunch of stacked engines.....I guess it won't be too long
before we have to call Homeland Security next time the local elementary
school rocket club starts launching their destructive devices from the playground.

And then people wonder why Americans aren't going into physics and chemisty.

 

[gezzer]

If I were you I would delete this post as you just confessed to a federal felony.:banghead:

 

[shooter503]

Gezzer,

I do not if the warning was meant for me - if so thank you.

As it turns out we were OK. Since the muzzle blast of the test action was quite unpleasant we welded a length of heavy tube onto the short barrel after the first couple of test shots. This made the barrel quite a bit over 16 inches long. I did not realize the part without the grooves made a difference.

See all the useful things you learn on these forums